The ‘Cooper-Letwin Act’ (European Union Withdrawal (No 5) Act 2019) may yet come to be known as the constitutional crisis that wasn’t. But, the advocacy by some of the Government’s ability to advise the crown to refuse assent in order to legitimately prevent the Bill from becoming law has provoked significant debate. The object of this post is not to address the question of whether the Government can properly advise the Crown to refuse royal assent (among others: advocated by John Finnis, Robert Craig; rejected by Mark Elliott, Jeff King and Tom Poole). The aim is to address the slightly different issue, raised by Professor Finnis, that the ‘Lord Chancellor’ can legitimately withhold Bills from presentation to the Monarch (considered in terms of constitutional principle by Elliott and David Howarth). On this point, I suggest that Professor Finnis’s argument is constitutionally mistaken, as a matter of practice and, importantly, precedent.
Professor Finnis’s Argument
Part of Professor Finnis’s argument that the Lord Chancellor can ‘legitimately withhold’ a Bill from royal assent rests upon the manner in which royal assent is achieved. On this, he advances the following propositions, (1) ‘our historic system puts the Lord Chancellor in a position to delay the submission of the Houses’ “advice”’. (2) The ‘lawfulness’ of the Lord Chancellor withholding a Bill is ‘indicated by the required mechanics of the actual assent’, which are governed by the Royal Assent Act 1967. (3) Although lawful, the act would be politically controversial and political responsibility for this would, under the usual application of the principle of responsible government, rest with the government of the day, of whom the Lord Chancellor is a part.
This argument for withholding assent allows Finnis to avoid the difficulties with asserting the permissibility under constitutional conventions of the Crown refusing royal assent on ministerial advice adverted to by Elliott, Poole and King, among others. However, it rests upon claims about the actual mechanics of the assent procedure that are mistaken. To engage with this part of Finnis’s argument is to step into the more arcane parts of the UK constitution, but in doing so it will be shown that Finnis’s argument about the actual mechanics of the process of royal assent is untenable.
The Clerk of the Crown
Finnis’s claim rests upon the power of the Lord Chancellor in sending Bills for assent when the Clerk of Parliaments signifies that a Bill is ready for assent, as described in Erskine May (24th edn, 643). But, in practice, it is the Clerk of the Crown in Chancery—or his Deputy—who performs this task. As detailed by Francis Bennion, in the practice under the Royal Assent Act 1967, it is the Clerk of the Crown in Chancery who prepares Letters Patent—the means by which assent is communicated by the Crown—, on the authority of the Clerk of Parliaments, to send to the Crown and it is the ‘duty of the Clerk of the Crown to present for Royal Assent all Bills which are ready at the time it is signified’ ((1981) 2 Stat LR 133, 139, 140 emphasis added). In the practice as described by Bennion, the Lord Chancellor is not personally involved in the sending process. It should be added that the Lord Chancellor is also not involved in the sealing of the Letters Patent, nor does he countersign them, contrary to what Finnis suggests: no countersignature is required for affixing the Great Seal to the Letters Patent—another task performed by the Clerk, for which the Queen’s sign manual is sufficient authority. Indeed any function in relation to the royal assent is virtually unmentioned in a 2014 Select Committee on the Constitution Report on the Lord Chancellor (2014-15 HL Paper 75), and the general absence of the Lord Chancellor from the practice of royal assent suggests Finnis’s proposition (1) is somewhat doubtful.
The Clerk of the Crown in Chancery is, however, formally responsible to the Lord Chancellor, according to the Cabinet Manual (see Glossary). But, the Manual also suggests a somewhat unusual position of the Clerk compared with the ordinary position in respect of ministerial responsibility: he is professed to be an officer of Parliament, not of the government. The Clerk of the Crown in Chancery is a specific office of state appointed by the Crown on the advice of the Prime Minister, but its holder has also, since 1885, held the position of Permanent Secretary to the Lord Chancellor’s Department and now to the Ministry of Justice. As permanent secretary, he acts like any other permanent secretary, but in his capacity as Clerk to the Crown his role is somewhat distinctive (for the history of the office, see AF Pollard (1942) 57 Eng Hist Rev 312). As Lord Schuster wrote of the role, the Clerk ‘was personally responsible for observing the proper forms…and was therefore in a sense an independent officer’ ((1949) 10 CLJ 175, 187). Moreover, the capacity in which the Clerk acts in the assent procedure was clarified by the Attorney-General, during the debates (here) on the 1967 Act,
‘[The Clerk of the Crown] is at once not only an officer of the Crown but an officer of both Houses of Parliament, so that there is no derogation in any way of the authority of this House by the proposed machinery.’
To put the point at its lowest, it implies the peculiarity of the responsibility of the Clerk when acting as an officer of Parliament.
There is no suggestion among the authorities that in the performance of this duty there is any discretion on the part of the Clerk not to present a Bill for assent (nor on the part of the Lord Chancellor, either). Anson describes the constitutional position as follows: ‘every Bill which is ready for the royal assent would necessarily be presented to [the Crown] for assent or rejection, and could not be withheld’ (Anson’s Law and Custom of the Constitution, 5th edn, vol 1, 334, emphasis added). Indeed, all the authorities that address the point are to the same effect that to withhold the presentation of a Bill would be unconstitutional, contradicting Finnis’s step (2) (see further below). Anne Twomey goes so far as to say that this is ‘well-recognised’ (The Veiled Sceptre (CUP 2018) 628).
Professor Finnis, however, seeks to make a more subtle point that a Bill can be withheld from assent by way of delay under the Clerk’s ‘discretion’ as to timing, on the basis that there is no obligation to send for assent immediately. But since the Clerk performs this task as an officer of Parliament, under the authority of the same, under a Statute, the 1967 Act, which was passed for the administrative convenience of the Crown-in-Parliament, any ‘discretion’ as to timing must be exercised for that purpose (as David Howarth rightly observes in the comments to King’s piece). It cannot be used for the government’s convenience to achieve by way of delay that which cannot be done outright. This is further underlined by Bennion’s account of the procedure (138):
‘It is the duty of the Clerk of the Crown, in consultation with the Government, to procure the signifying of the Royal Assent at the earliest opportunity after a Bill becomes ready for assent’ (emphasis added).
As described, it is hard even to call this a discretion. It should be noted that ‘consultation with the Government’ suggests that the government has a role to play, but the idea of ‘consultation’ is best understood to reflect a regard for inter-institutional comity and does not in any way imply a power of veto against sending either outright or by way of delay.
This does not quite answer Finnis’s point about the formal interposition of the Lord Chancellor in the process and the Clerk’s formal responsibility to him. But from the mere existence of these formalities, it does not follow that any role played by the Lord Chancellor involves the performance of any function in government, as required by step (3) in Finnis’s argument. The question of capacity is obscured by the fact that duties in relation to the Great Seal, which is relevant later in the assent procedure, are not covered by the reforms to the Lord Chancellor’s office in the CRA 2005 (Schedule 7, para 1), and it is most likely that the Lord Chancellor acts in the sending process under preserved ‘ceremonial functions’ (Ministry of Justice: Written Evidence to the 2014 Select Committee on the Constitution on the Office of the Lord Chancellor, OLC0028, 90). Pre-CRA the Lord Chancellor was the exemplar of an officer of state who did not fit within the neat model of the separation of powers. As Speaker in the Lords, the Lord Chancellor did not sit as a representative of the government, but as ‘presiding officer’ of the House (as referred to in the Select Committee Report, 2014-15 HL Paper 75, Appendix 3). To illustrate: to act as a government minister in the Lords, the Lord Chancellor underwent a ceremonial change of roles, which involved physically changing his position by stepping away from the woolsack—his chair as Speaker. Insofar as the Clerk acts on behalf of the Lord Chancellor in connection with the sending procedure for royal assent, it is in relation to the latter’s previous Parliamentary role as presiding officer. Indeed this explains why an officer of Parliament is tasked with administering the procedure for assent. The Lord Chancellor’s role is more clearly shown by the performance of a comparable role by the Presiding Officer of the Scottish Parliament in obtaining royal assent under s 32, Scotland Act 1998. The better view, therefore, is that the Clerk’s responsibility to the Lord Chancellor involves responsibility to another officer of the Crown in Parliament, rather than responsibility to the government.
The Precedent for Delay
Finnis’s idea of ordering the Clerk of the Crown to delay sending Bills for Royal Assent is interesting, because it has a rather curious and ancient precedent. The precedent might appear to be evidence for what Finnis suggests is constitutionally permissible, yet, on closer inspection, it transpires to be authority for the proposition that delay is constitutionally illegitimate.
The account given by Burnett (Bishop Burnett’s History of His Own Time vol ii, 267-8, cited by both Hatsell and Erskine May) is as follows: in 1680, during the Exclusion Crisis (a direct precursor to the Glorious Revolution), Charles II was faced with a Bill repealing an Act of Elizabeth I (Religion Act 1592 35 Eliz c 1, also known as ‘the Act Against Puritans’) which had been aimed at quashing the ‘seditious’ behaviour of the Puritan movement. The repeal Bill passed both Houses of Parliament, but Charles II, who did not want to be seen to refuse assent to the Bill, instructed the Clerk of the Crown to withdraw the Bill from the list which was to be presented to him for assent at the proroguing of Parliament. The Clerk duly complied and thus the Bill was not enacted.
The reaction at the time—when refusal of royal assent was not uncommon—established the principle that, as an earlier edition of Erskine May puts it (in reliance upon Burnett), Bills ‘cannot legally be withheld’ from royal assent (May, 1st edn, 291). Burnett called it a ‘high crime’ on the part of the Clerk of the Crown to have failed to perform his duties to Parliament. In point of fact, Burnett’s account is wrong on the culpability of the Clerk of the Crown: it was the Clerk of the Parliaments who was at fault, a fact established in the following Parliamentary session by a grand committee of the Lords in which both clerks were held to account (see CE Fryer (1917) 32(105) Eng Hist Rev 103). But, this detail is somewhat immaterial since the Clerk of the Crown was only absolved on the evidence, and the general proposition invoked by the Commons—that it was a ‘Great Violation of the Constitution of Parliaments in passing Laws, and of most dangerous Consequence’ for a Bill not to be tendered for assent (Lords Journal (1675-81) 13, 756)—covered other officers involved in the assent process. The reactions at the time to this highly anomalous episode, as detailed in Fryer (above), can also be understood to extend to a prohibition on the refusal of assent (as implied by the use of ‘assent must be forthcoming’ in Erskine May, 24th edn, 642), but it certainly is precedent for the rule that a veto cannot be procured by the surreptitious means of not presenting the Bill in the first place: the opposite rule to that which Finnis advances.
It is also significant that the objection to withholding Bills from assent is generally framed as a question of vires. For instance, Bennion writes, ‘[t]here is no power to withhold a Bill from Assent, whether on the instructions of the government or anyone else’ (138, emphasis added). This is different from the debate over the refusal of assent, which is a question over the exercise of a power where its exercise is constrained by obligations under (non-legal) constitutional conventions.
Conclusion
The precedent, coupled with the constitutional roles of the Clerk and Lord Chancellor as officers of the Crown in Parliament, shows quite simply that Professor Finnis is wrong about the constitutional legitimacy of withholding Bills from assent in the manner he describes. The subsequent development of the advice convention to govern the legitimate exercise of existing powers cannot have had the effect of creating new, or newly legitimising, powers, which were previously—and continue to be understood to be—unconstitutional.
I am very grateful to Jeff King, Gavin Phillipson and Mark Elliott for their helpful comments and/or discussion of the relevant issues. The usual disclaimer applies.
Joseph Crampin, MPhil/PhD candidate and Teaching Fellow, University College London.
(Suggested citation: J. Crampin, ‘Precedent for Delaying Royal Assent: A Response to Professor Finnis’, U.K. Const. L. Blog (17th Apr. 2019) (available at https://ukconstitutionallaw.org/))
The ‘Cooper-Letwin Act’ (European Union Withdrawal (No 5) Act 2019) may yet come to be known as the constitutional crisis that wasn’t. But, the advocacy by some of the Government’s ability to advise the crown to refuse assent in order to legitimately prevent the Bill from becoming law has provoked significant debate. The object of this post is not to address the question of whether the Government can properly advise the Crown to refuse royal assent (among others: advocated by John Finnis, Robert Craig; rejected by Mark Elliott, Jeff King and Tom Poole). The aim is to address the slightly different issue, raised by Professor Finnis, that the ‘Lord Chancellor’ can legitimately withhold Bills from presentation to the Monarch (considered in terms of constitutional principle by Elliott and David Howarth). On this point, I suggest that Professor Finnis’s argument is constitutionally mistaken, as a matter of practice and, importantly, precedent.
Professor Finnis’s Argument
Part of Professor Finnis’s argument that the Lord Chancellor can ‘legitimately withhold’ a Bill from royal assent rests upon the manner in which royal assent is achieved. On this, he advances the following propositions, (1) ‘our historic system puts the Lord Chancellor in a position to delay the submission of the Houses’ “advice”’. (2) The ‘lawfulness’ of the Lord Chancellor withholding a Bill is ‘indicated by the required mechanics of the actual assent’, which are governed by the Royal Assent Act 1967. (3) Although lawful, the act would be politically controversial and political responsibility for this would, under the usual application of the principle of responsible government, rest with the government of the day, of whom the Lord Chancellor is a part.
This argument for withholding assent allows Finnis to avoid the difficulties with asserting the permissibility under constitutional conventions of the Crown refusing royal assent on ministerial advice adverted to by Elliott, Poole and King, among others. However, it rests upon claims about the actual mechanics of the assent procedure that are mistaken. To engage with this part of Finnis’s argument is to step into the more arcane parts of the UK constitution, but in doing so it will be shown that Finnis’s argument about the actual mechanics of the process of royal assent is untenable.
The Clerk of the Crown
Finnis’s claim rests upon the power of the Lord Chancellor in sending Bills for assent when the Clerk of Parliaments signifies that a Bill is ready for assent, as described in Erskine May (24th edn, 643). But, in practice, it is the Clerk of the Crown in Chancery—or his Deputy—who performs this task. As detailed by Francis Bennion, in the practice under the Royal Assent Act 1967, it is the Clerk of the Crown in Chancery who prepares Letters Patent—the means by which assent is communicated by the Crown—, on the authority of the Clerk of Parliaments, to send to the Crown and it is the ‘duty of the Clerk of the Crown to present for Royal Assent all Bills which are ready at the time it is signified’ ((1981) 2 Stat LR 133, 139, 140 emphasis added). In the practice as described by Bennion, the Lord Chancellor is not personally involved in the sending process. It should be added that the Lord Chancellor is also not involved in the sealing of the Letters Patent, nor does he countersign them, contrary to what Finnis suggests: no countersignature is required for affixing the Great Seal to the Letters Patent—another task performed by the Clerk, for which the Queen’s sign manual is sufficient authority. Indeed any function in relation to the royal assent is virtually unmentioned in a 2014 Select Committee on the Constitution Report on the Lord Chancellor (2014-15 HL Paper 75), and the general absence of the Lord Chancellor from the practice of royal assent suggests Finnis’s proposition (1) is somewhat doubtful.
The Clerk of the Crown in Chancery is, however, formally responsible to the Lord Chancellor, according to the Cabinet Manual (see Glossary). But, the Manual also suggests a somewhat unusual position of the Clerk compared with the ordinary position in respect of ministerial responsibility: he is professed to be an officer of Parliament, not of the government. The Clerk of the Crown in Chancery is a specific office of state appointed by the Crown on the advice of the Prime Minister, but its holder has also, since 1885, held the position of Permanent Secretary to the Lord Chancellor’s Department and now to the Ministry of Justice. As permanent secretary, he acts like any other permanent secretary, but in his capacity as Clerk to the Crown his role is somewhat distinctive (for the history of the office, see AF Pollard (1942) 57 Eng Hist Rev 312). As Lord Schuster wrote of the role, the Clerk ‘was personally responsible for observing the proper forms…and was therefore in a sense an independent officer’ ((1949) 10 CLJ 175, 187). Moreover, the capacity in which the Clerk acts in the assent procedure was clarified by the Attorney-General, during the debates (here) on the 1967 Act,
‘[The Clerk of the Crown] is at once not only an officer of the Crown but an officer of both Houses of Parliament, so that there is no derogation in any way of the authority of this House by the proposed machinery.’
To put the point at its lowest, it implies the peculiarity of the responsibility of the Clerk when acting as an officer of Parliament.
There is no suggestion among the authorities that in the performance of this duty there is any discretion on the part of the Clerk not to present a Bill for assent (nor on the part of the Lord Chancellor, either). Anson describes the constitutional position as follows: ‘every Bill which is ready for the royal assent would necessarily be presented to [the Crown] for assent or rejection, and could not be withheld’ (Anson’s Law and Custom of the Constitution, 5th edn, vol 1, 334, emphasis added). Indeed, all the authorities that address the point are to the same effect that to withhold the presentation of a Bill would be unconstitutional, contradicting Finnis’s step (2) (see further below). Anne Twomey goes so far as to say that this is ‘well-recognised’ (The Veiled Sceptre (CUP 2018) 628).
Professor Finnis, however, seeks to make a more subtle point that a Bill can be withheld from assent by way of delay under the Clerk’s ‘discretion’ as to timing, on the basis that there is no obligation to send for assent immediately. But since the Clerk performs this task as an officer of Parliament, under the authority of the same, under a Statute, the 1967 Act, which was passed for the administrative convenience of the Crown-in-Parliament, any ‘discretion’ as to timing must be exercised for that purpose (as David Howarth rightly observes in the comments to King’s piece). It cannot be used for the government’s convenience to achieve by way of delay that which cannot be done outright. This is further underlined by Bennion’s account of the procedure (138):
‘It is the duty of the Clerk of the Crown, in consultation with the Government, to procure the signifying of the Royal Assent at the earliest opportunity after a Bill becomes ready for assent’ (emphasis added).
As described, it is hard even to call this a discretion. It should be noted that ‘consultation with the Government’ suggests that the government has a role to play, but the idea of ‘consultation’ is best understood to reflect a regard for inter-institutional comity and does not in any way imply a power of veto against sending either outright or by way of delay.
This does not quite answer Finnis’s point about the formal interposition of the Lord Chancellor in the process and the Clerk’s formal responsibility to him. But from the mere existence of these formalities, it does not follow that any role played by the Lord Chancellor involves the performance of any function in government, as required by step (3) in Finnis’s argument. The question of capacity is obscured by the fact that duties in relation to the Great Seal, which is relevant later in the assent procedure, are not covered by the reforms to the Lord Chancellor’s office in the CRA 2005 (Schedule 7, para 1), and it is most likely that the Lord Chancellor acts in the sending process under preserved ‘ceremonial functions’ (Ministry of Justice: Written Evidence to the 2014 Select Committee on the Constitution on the Office of the Lord Chancellor, OLC0028, 90). Pre-CRA the Lord Chancellor was the exemplar of an officer of state who did not fit within the neat model of the separation of powers. As Speaker in the Lords, the Lord Chancellor did not sit as a representative of the government, but as ‘presiding officer’ of the House (as referred to in the Select Committee Report, 2014-15 HL Paper 75, Appendix 3). To illustrate: to act as a government minister in the Lords, the Lord Chancellor underwent a ceremonial change of roles, which involved physically changing his position by stepping away from the woolsack—his chair as Speaker. Insofar as the Clerk acts on behalf of the Lord Chancellor in connection with the sending procedure for royal assent, it is in relation to the latter’s previous Parliamentary role as presiding officer. Indeed this explains why an officer of Parliament is tasked with administering the procedure for assent. The Lord Chancellor’s role is more clearly shown by the performance of a comparable role by the Presiding Officer of the Scottish Parliament in obtaining royal assent under s 32, Scotland Act 1998. The better view, therefore, is that the Clerk’s responsibility to the Lord Chancellor involves responsibility to another officer of the Crown in Parliament, rather than responsibility to the government.
The Precedent for Delay
Finnis’s idea of ordering the Clerk of the Crown to delay sending Bills for Royal Assent is interesting, because it has a rather curious and ancient precedent. The precedent might appear to be evidence for what Finnis suggests is constitutionally permissible, yet, on closer inspection, it transpires to be authority for the proposition that delay is constitutionally illegitimate.
The account given by Burnett (Bishop Burnett’s History of His Own Time vol ii, 267-8, cited by both Hatsell and Erskine May) is as follows: in 1680, during the Exclusion Crisis (a direct precursor to the Glorious Revolution), Charles II was faced with a Bill repealing an Act of Elizabeth I (Religion Act 1592 35 Eliz c 1, also known as ‘the Act Against Puritans’) which had been aimed at quashing the ‘seditious’ behaviour of the Puritan movement. The repeal Bill passed both Houses of Parliament, but Charles II, who did not want to be seen to refuse assent to the Bill, instructed the Clerk of the Crown to withdraw the Bill from the list which was to be presented to him for assent at the proroguing of Parliament. The Clerk duly complied and thus the Bill was not enacted.
The reaction at the time—when refusal of royal assent was not uncommon—established the principle that, as an earlier edition of Erskine May puts it (in reliance upon Burnett), Bills ‘cannot legally be withheld’ from royal assent (May, 1st edn, 291). Burnett called it a ‘high crime’ on the part of the Clerk of the Crown to have failed to perform his duties to Parliament. In point of fact, Burnett’s account is wrong on the culpability of the Clerk of the Crown: it was the Clerk of the Parliaments who was at fault, a fact established in the following Parliamentary session by a grand committee of the Lords in which both clerks were held to account (see CE Fryer (1917) 32(105) Eng Hist Rev 103). But, this detail is somewhat immaterial since the Clerk of the Crown was only absolved on the evidence, and the general proposition invoked by the Commons—that it was a ‘Great Violation of the Constitution of Parliaments in passing Laws, and of most dangerous Consequence’ for a Bill not to be tendered for assent (Lords Journal (1675-81) 13, 756)—covered other officers involved in the assent process. The reactions at the time to this highly anomalous episode, as detailed in Fryer (above), can also be understood to extend to a prohibition on the refusal of assent (as implied by the use of ‘assent must be forthcoming’ in Erskine May, 24th edn, 642), but it certainly is precedent for the rule that a veto cannot be procured by the surreptitious means of not presenting the Bill in the first place: the opposite rule to that which Finnis advances.
It is also significant that the objection to withholding Bills from assent is generally framed as a question of vires. For instance, Bennion writes, ‘[t]here is no power to withhold a Bill from Assent, whether on the instructions of the government or anyone else’ (138, emphasis added). This is different from the debate over the refusal of assent, which is a question over the exercise of a power where its exercise is constrained by obligations under (non-legal) constitutional conventions.
Conclusion
The precedent, coupled with the constitutional roles of the Clerk and Lord Chancellor as officers of the Crown in Parliament, shows quite simply that Professor Finnis is wrong about the constitutional legitimacy of withholding Bills from assent in the manner he describes. The subsequent development of the advice convention to govern the legitimate exercise of existing powers cannot have had the effect of creating new, or newly legitimising, powers, which were previously—and continue to be understood to be—unconstitutional.
I am very grateful to Jeff King, Gavin Phillipson and Mark Elliott for their helpful comments and/or discussion of the relevant issues. The usual disclaimer applies.
Joseph Crampin, MPhil/PhD candidate and Teaching Fellow, University College London.
(Suggested citation: J. Crampin, ‘Precedent for Delaying Royal Assent: A Response to Professor Finnis’, U.K. Const. L. Blog (17th Apr. 2019) (available at https://ukconstitutionallaw.org/))
The EU27 have agreed to grant the extension requested by the Prime Minister, the terms of which need not be repeated here. Suffice it to say for present purposes that exit day has been moved to 31 October 2019 at the latest, subject to the proviso that an approval of the draft Withdrawal Agreement by the UK and the EU27 would bring the Article 50 period to an end.
The continuing membership of a withdrawing State in the EU for an extended period of time is unprecedented in recent times, as is the triggering of Article 50 itself. This naturally prompts the following question: what would be the status of the UK, as a Member State seeking to withdraw from the EU, within the EU28? This matter becomes even more pressing, since it has been suggested by a few voices in Westminster that the UK could block a number of EU initiatives whilst remaining an EU member, such that it would act as a sort of ‘Trojan horse’ which should not have been allowed to stay inside the EU gates (strictly metaphorically speaking). This post will briefly set out the legal and institutional set-up that would obtain in the EU27+1, as per the EU Treaties, the European Council conclusions, and other EU acts, as they pertain to the current situation.
UK participation in the EU institutions
From an institutional standpoint, it is underlined in the European Council conclusions that ‘the extension cannot be allowed to undermine the regular functioning of the Union and its institutions’ (in para. 3). Accordingly, the UK will have to hold European elections, otherwise the extended Article 50 period would come to an end on 1 June 2019 (unless the UK has agreed the Withdrawal Agreement by 22 May).
The European Council conclusions further foresee the possibility of separate meetings of the EU27 ‘to discuss matters related to the situation after the withdrawal of the United Kingdom’ (para. 8). Such formations are not unusual. For example, the Heads of State or Government of the Eurozone Member States (or the EU19, if you wish) also meet separately in Euro Summits. The Euro Summit is not formalised in the EU Treaties either (but is formalised, as explained elsewhere, in European Council conclusions and a separate intergovernmental treaty).
The UK’s rights and obligations
In rather more general terms, the UK will remain subject to the full range of rights and obligations that flow from its status as EU Member State until its orderly (or perhaps less orderly) withdrawal from the EU. In this connection, the European Council conclusions reiterate in para. 7 part of what is Article 4(3) TEU (known as the principle or duty of sincere cooperation):
‘The European Council takes note of the commitment by the United Kingdom to act in a constructive and responsible manner throughout the extension in accordance with the duty of sincere cooperation and expects the United Kingdom to fulfil this commitment and Treaty obligation in a manner that reflects its situation as a withdrawing Member State. To this effect, the United Kingdom shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives, in particular when participating in the decision-making processes of the Union.’
It should be stressed that Article 4(3) TEU is more powerful than meets the eye. It has been used in areas as diverse as competition law, the implementation of Directives, external relations law, and the conclusion of intergovernmental inter se agreements. It should be regarded as a cognisable legal constraint that would be actionable in the EU Courts. The salient point for present purposes is that, apart from it being politically unrealistic that the UK Government would seek to obstruct the workings of the EU27+1 from within, there are legal limits to such attempts, which would be enforced by the EU Courts.
Other ‘creative’ ideas about bringing the EU’s workings to a grinding halt do not seem to be realistic either, as convincingly argued in a recent blog by Professor Steve Peers. The UK’s participation in major political decisions prior to the currently agreed exit date is rather unlikely. This is partly because EU decision-making is slowing down in the run-up to the European elections, and any ‘unfinished business’ may be discontinued as such (as per the European Parliament’s Rules of Procedure). It is also because some of the major decisions (such as on the EU’s next Multiannual Financial Framework) may also be taken after the UK’s projected exit from the EU. Even more so, the EU27 States themselves could get creative and have recourse to enhanced cooperation (Article 20 TEU), which does not require the participation of all EU Member States. In the vast majority of cases, the UK could not prevent the EU27 (or any subset thereof) from authorising the use of this procedure (Article 329(1) TFEU, taken together with Article 16(3) TEU) or from adopting the relevant measures (Article 330 TFEU). Any enhanced cooperation must fully comply with the rules set out in Articles 20 TEU and 326-334 TFEU. The UK is equally unable to block the Permanent Structured Cooperation (PESCO), whose aim is to deepen defence cooperation among a subset of EU Member States, as per Articles 42(6) and 46 TEU.
Four scenarios for the UK-EU27 negotiations
This leaves, for the moment, four different options to the UK: (1) ratifying the Withdrawal Agreement and moving on to the next stage of the negotiations; (2) leaving the EU without a deal (the domestic implications of which will not be addressed here); (3) revoking the Article 50 notification unilaterally (as per Wightman) and staying in the EU; and (4) shifting its red lines, such that a different agreement with the EU27 could be in sight. A different agreement seems, in light of paras. 4-5 of the European Council conclusions, to be politically in sight only with respect to the Political Declaration on the future relationship and/or the future UK-EU27 agreement(s) to be concluded once the Withdrawal Agreement itself is ratified. Legally, there is nothing to prevent a reopening of the Withdrawal Agreement, under fundamentally different circumstances.
It should be further noted, with regard to option (3) adumbrated above, that revoking the Article 50 notice only to trigger Article 50 again in a manner that would constitute an abuse of the withdrawal process would not be sanctioned by the CJEU. The Wightman ruling may have been silent in this respect, but the prevailing view seems to hold (and my opinion is too) that such an abuse would not be permitted under Article 50 TEU.
I am grateful to Dr René Repasi, Professor Stephen Tierney and Professor Alison Young for their valuable comments.
Menelaos Markakis, Postdoctoral researcher, Erasmus University Rotterdam
(Suggested citation: M. Markakis, ‘A Trojan Horse in the EU? The Curious Case of the EU27+1’, U.K. Const. L. Blog (12th Apr. 2019) (available at https://ukconstitutionallaw.org/))
Lawyers like to make as much sense as possible of the material in front of them, transforming it, if they can, from a jumble of decisions and remarks into a coherent whole. For constitutional lawyers that habit of mind is both a blessing and a curse. It is a blessing because it causes lawyers to look for subtleties others miss (albeit sometimes subtleties they themselves create). It is a curse because when the material is generated by underlying mechanisms and ideas that fundamentally conflict, it leaves lawyers at a loss, or, worse, going round in circles.
The recent controversy played out in this blog, in the pages of The Times, and elsewhere about whether a UK government could procure from the monarch a veto of any bill passed by both houses of parliament without government support is an example of the curse. As A.H. Birch pointed out more than 50 years ago (A. H. Birch, Representative and Responsible Government: an Essay on the British Constitution London: Allen and Unwin, 1964), the British system of government encompasses two very different, often conflicting views of how it works. One view, perhaps more familiar to lawyers, is the constitution as it looks from Westminster. According to this Westminster view, Parliament, and especially the House of Commons, sits at the centre of the system. The Commons is, with the aid of the Parliament Acts 1911-49, legislatively supreme, and it makes and breaks governments by granting or withholding its confidence. Ministers, though not technically its delegates, are at its beck and call. It is the ‘cockpit of the nation’, the centre of political attention. As a result, although the House of Commons should not seek to administer the country, it is the ultimate source of authority for those who do. The other view, the Whitehall view, posits that the Crown, now largely in the form of its ministers, is the centre of the system. Effective government requires ministers to be able to act quickly and authoritatively. On this view, parliament is peripheral. It can assist effective government by passing legislation when ministers ask, but otherwise it is a side-show.
These two views map on to different conceptions of democracy. The Westminster view corresponds to representative democracy in the tradition of J.S. Mill. The Commons encompasses the whole nation, not just the current majority party, and its deliberations allow the country to meet the definition of democracy as government by discussion. The Whitehall view corresponds to what I have called elsewhere ([2011] Public Law 490) the Hilary Armstrong theory of the constitution, in honour of the former Labour chief whip who advocated it at the time of the debate on the report of the Wright Committee. The idea is that democracy means choosing between a few, ideally two, party manifestoes, presented to the electorate by party leaders who are, effectively if not legally, candidates to become prime minister. The only role of elected MPs is to support their leader and to implement their manifesto. All other forms of parliamentary activity are illegitimate and undemocratic. Parliament has no collective identity or interests. It is merely a battle field for the parties. The Armstrong theory is a form of plebiscitary democracy or Schumpeterian competing elite democracy, with an added element of binding party manifestoes.
Seen from Westminster, the government veto proposal looks outrageous. Ministers, whose democratic authority on this view derives solely and entirely from the House of Commons, would be frustrating a decision by the only democratic element in the system. From Whitehall, however, it looks quite reasonable. Parliament should not be allowed to frustrate democracy as expressed in the manifesto of the governing party and in the person of the Prime Minister.
No plausible interpretation of the system exists that accommodates both views. Exchanging historical events as precedents takes one no further because those events were generated by people acting in accordance with different theories. The system bumps along without theoretical resolution but causing very few practical difficulties in periods when a single party government is backed by a comfortable single party majority and only the occasional difficulty in periods of stable coalition. The problem is that we are now in a period of minority government and face a time of major instability in which the party system might change radically. In these circumstances, the incompatibility between the two views can no longer be ignored.
All one can say from an interpretive, as opposed to a normative, point of view is that during the second half of the 20th century the Whitehall view was dominant but in the 21st century, especially since 2010, the Westminster view has made advances. These include the Wright Committee reforms (I declare an interest as a member of the Wright Committee); section 3(6) of the Constitutional Reform and Governance Act 2010, which requires the Prime Minister to ensure that civil servants are aware of ‘the constitutional significance of Parliament’; the Fixed Term Parliaments Act 2011, which shifts the power to call elections to the House of Commons and legitimises the idea that the Commons can change the government without holding an election (I declare another interest as the author and sponsor of an earlier Fixed Term Parliaments Bill); and the House taking control of its own proceedings on 25 March 2019, in effect carrying temporarily into effect the final proposal of the Wright Committee that the House should vote on its own agenda, subsequently passing the European Union (Withdrawal) (no. 5) Act in the teeth of government opposition.
As for the future, I can only see a continuation of the conflict. On the Whitehall side, public opinion has taken badly to parliament’s attempts to generate a collective view on Brexit. Strikingly, in one survey 54% of respondents agreed that the country needs a ‘strong leader who will break the rules’, a result suggesting a disturbing trade-off between promoting parliamentary debate and preserving support for the rule of law. Supporters of the Whitehall view can say that their view, in contrast to the Westminster view, appeals to the many voters who ‘just want politicians to get on with it’ and who hear parliamentary debates as ‘bickering’.
On the other hand, the political conditions that generated support for the Whitehall view in the second half of the 20th century are disappearing. Broad support for the Whitehall view rests on the main opposition party’s belief that, because it might soon form a government of its own, it has just as much an interest as the government in keeping parliament at the periphery of politics. It also rests on backbenchers having little interest in the work of the House and caring only about their prospects for ministerial office. The problem with the first condition is that the leadership of the main opposition party has no ministerial experience and that many of its backbenchers distrust the leadership and so have no desire to let it govern unchecked. And the problem with the second condition is that the combination of the Liberal Democrats’ painful experience in coalition and the rise of the Scottish National Party and the DUP means that almost 10% of MPs, enough in many circumstances to prevent the formation of an overall majority government, have no interest in ministerial office. Their interest is to strengthen parliament, not the government.
The crucial question, beyond but also tied up with the politics of Brexit, is where the conflict will next take the system. One possible adaptation is to grant minority governments more powers, so that they can behave more as if they were majority governments. An adaptation in the opposite direction would be to make minority governments even weaker to encourage the formation of majority coalitions, perhaps including changing the electoral system to reduce the penalty smaller parties seem to suffer for compromising with larger parties in coalitions.
The problem with the strengthening option is that it risks handing great power to extreme parties who have fallen well short of majority electoral support. In a highly fragmented election, such a government could come to power on a very small vote. The problem with the weakening option is that, unless the British electorate very rapidly moves away from its hostility towards the slow politics of negotiation between parties in search of consensus, it will alienate voters even more and send them in the direction of those same extremes. There is danger in every direction.
David Howarth, Professor of Law and Public Policy, University of Cambridge
(Suggested citation: D. Howarth, ‘Westminster versus Whitehall: Two Incompatible Views of the Constitution’, U.K. Const. L. Blog (10th Apr. 2019) (available at https://ukconstitutionallaw.org/))
Since the referendum in 2016, the Government has repeatedly justified its decisions on Brexit by invoking the concept of public trust. In December last year, the Prime Minister rejected the idea of a second referendum because, in her view, it “would do irreparable damage to the integrity of our politics, because it would say to millions who trusted in democracy, that our democracy does not deliver”. Then, last month, the Prime Minister said that not leaving the EU would cause “potentially irreparable damage to public trust”. And most recently, the Government – when confronted with a public petition to revoke Article 50 and remain in the EU – relied upon this concept of public trust to justify its ultimate rejection of that petition.
At the date of writing, the petition has just over 6 million signatures. On 26 March 2019, the Government rejected the petition. The first paragraph of the Government’s response reads:
It remains the Government’s firm policy not to revoke Article 50. We will honour the outcome of the 2016 referendum and work to deliver an exit which benefits everyone, whether they voted to Leave or to Remain.
As in the past, the Government continues in its response to invoke public trust in Government and to raise the concern that not leaving the EU will damage such trust. It explains:
Revoking Article 50, and thereby remaining in the European Union, would undermine both our democracy and the trust that millions of voters have placed in Government.
The Government acknowledges the considerable number of people who have signed this petition. However, close to three quarters of the electorate took part in the 2016 referendum, trusting that the result would be respected.
…
Revoking Article 50 would break the promises made by Government to the British People, disrespect the clear instruction from a democratic vote, and in turn, reduce confidence in our democracy. As the Prime Minister has said, failing to deliver Brexit would cause ‘potentially irreparable damage to public trust’, and it is imperative that people can trust their Government to respect their votes and deliver the best outcome for them. [Italics added]
The Government is not wrong to place great importance on public trust. First of all, it seems appropriate on an intuitive level that the Government should fulfil the public’s trust in it. Are we not entitled to trust our political representatives? But additionally, as I have noted in a recent article in the Oxford Journal of Legal Studies, such trust has significant instrumental value. For more than 50 years, social scientists have stressed the value of public trust in government to well-functioning democracies. They have argued – supported by a wealth of empirical research – that such trust is tied to the valuable ends of social stability, economic welfare and effective governance. Why? When the public has greater trust in government actors, it is more likely to regard government actions as legitimate and to cooperate with government, tolerating the political regime and voluntarily complying with laws and government demands. Such cooperation is critical because it allows the state to focus its limited resources for coercion on the relatively few disobedient. In Russell Dalton’s words: “democracy functions with minimal coercive force because of the legitimacy of the system and the voluntary compliance of the public. Declining feelings of political trust and political support can undermine this relationship and thus the workings of democracy” (159).
The Government’s apparent understanding of what trust means, however, is oversimplified. It is evident from the Prime Minister’s statements as well as the Government’s response to the recent petition, that the Government’s interpretation of public trust in Government, and what will damage it, places considerable importance on outcome. Put simply, in trusting you, I expect that you will deliver a specific outcome. So, if I trust you to buy me a specific house (which we can call Villa X), you will, in the end, buy me Villa X. Applied to Brexit, this understanding means that the public – in trusting the Government vis-à-vis Brexit – expects that the Government will deliver the result of the 2016 referendum: that the UK will leave the EU. The Government notes in its response that the public voted in the referendum, “trusting that the result would be respected”. It also refers to the Prime Minister’s earlier statement that “failing to deliver Brexit would cause ‘potentially irreparable damage to public trust’”. And it concludes its response to the petition with: “it is imperative that people can trust their Government to respect their votes and deliver the best outcome for them.” [Italics added]
But trust is far more complicated than that. The philosophical literature stresses that a factor distinguishing trust from the related concept of reliance is that breach or abuse of trust gives rise to feelings of betrayal, resentment and anger in the truster (whereas unrealised reliance does not). An outcome-based understanding of trust – like that adopted by the Government – implies that if a trustee does not deliver a specific outcome, the truster’s trust in her will have been breached or abused. And so, it follows that the truster in these circumstances will feel betrayed, resentful and angry. Applied to Brexit, this means that if the UK does not leave the EU, the Government will have breached or abused the public’s trust; and the public will feel betrayed by, as well as resentful and angry towards, the Government. But that cannot be right. We can imagine many reasons why a trustee will not, in the end, deliver an outcome, including reasons that may be beyond the trustee’s control. This is especially the case in a political context like Brexit where political, social and economic circumstances may change with time. Consider the example of you buying me Villa X. Now, you may not, in the end, buy me Villa X for any number of reasons. You may become physically incapacitated. Or you may learn that the property next to Villa X will be used for some undesirable purpose that will significantly diminish the house’s value. Or you may learn that advertisements about Villa X – upon which I based my decision to buy it – were misleading. If you do not buy me Villa X in these circumstances, surely you have not breached or abused my trust. Hence, I do not think we can fairly say that the trustee’s trust has been breached or abused – with its corresponding feelings of betrayal, resentment and anger – simply because the expected outcome has not been delivered. Given this problematic consequence of a purely outcome-based understanding of trust, it is not surprising that most academic writers have defined the concept in terms beyond outcome, specifically in terms of the trustee’s goodwill towards the truster and the trustee’s competence vis-à-vis the trusted subject matter – terms that I have argued, in another article, relate more to the process of decision-making than to its outcome.
Moreover, an outcome-based understanding of trust does not deliver the goods that public trust is expected to deliver. To repeat, public trust in government is valuable because of its tie to public cooperation, including the public’s willingness to accept governmental decisions, its feeling obligated to obey laws and its performance evaluations of government actors. However, a significant body of empirical work (including that of Tom Tyler and John Hibbing and Elizabeth Theiss-Morse) has shown that the public’s assessments of government legitimacy – and the cooperation that follows from such assessments – are minimally influenced by the public’s judgments of the outcome of governmental decision-making. Rather, the central or dominant consideration for the public is, actually, the process by which government actors make those decisions. So, if one of the principal reasons we are concerned with trust is its tie to public cooperation, should we not aim to understand the concept in terms of what better yields such cooperation: the decision-making process? Of note, the empirical work makes clear that for the public to assess government as legitimate, it is central that the process be seen as fair, including transparent and participative, as well as competent.
So, what does all this mean? It means that if the Government is concerned with the public’s trust (including fulfilling that trust) – as it says it is – it should pay greater attention to the process it follows vis-à-vis Brexit. Put simply, public trust in this context is not a matter of simply delivering an outcome – leaving the EU – at all costs. Process is key. Trust requires the Government to carry out the Brexit process in a competent and transparent manner. It also requires that the public be able to meaningfully participate in the decision-making process. Such participation – which surely includes the Government giving due consideration to the recent petition and perhaps a referendum on any final Brexit decision – would serve to fulfil the public’s trust. Regardless of the outcome ultimately delivered, it is the Government’s failure to follow a fair, participative and competent process that will damage public trust.
Dr David Vitale is an Assistant Professor at the School of Law, University of Warwick.
(Suggested citation: D. Vitale, ‘Leaving the EU: A Matter of “Trust”?’, U.K. Const. L. Blog (9th Apr. 2019) (available at https://ukconstitutionallaw.org/))
I agree with Mark Elliott in finding my April 1 argument about prorogation and assent astonishing and monstrous, once the argument’s important premises have been omitted, as he has omitted them. And it is left even more objectionable when he has attributed to it a premise, two assumptions, and a goal each far from my thinking and writing. At the root of his misapprehensions is an important mistake about constitutional monarchy.
The premise he attributes to me is that it is wrong for the House to undertake indicative votes, or to set aside Standing Orders to do so. But I said I was concerned about “imminent operations” of a House that had already conducted such unusual indicative votes. The operations I said I was concerned about were something different: to “override Government resistance by contempt rulings, or even by passing in both Houses a Bill for imposing statutory control of our dealings with the EU.” (And though it is generally imprudent for Parliament to micro-manage our dealings with foreign powers, I do not, pace Elliott, see anything constitutionally illegitimate in statutory controls on our dealings with the EU.) The first assumption Elliott attributes to me is that in these matters, what is normal is normative. To be sure, no one should try to deduce Ought from Is. And everyone should agree that, even when custom and usage are rightly treated, for our common good, as needed for beneficial coordination and therefore normative, there can be appropriate occasions for setting them aside. The Standing Orders and practice of the Commons are not rarely set aside legitimately.
The second assumption attributed to me is that the executive is “the primary constitutional actor” in whose role “Parliament is no more than an unwelcome interloper”. But my works celebrate Parliament’s unconditional supremacy over the executive as a source of judicially enforceable law (which includes also common law subject to, though not derived from, statute), and of statutory boundaries for all executive conduct. And the proper executive, I hold, is that set of ministers whom a majority of the Commons have given their support to without since withdrawing it.
The goal he attributes to my thesis about the legitimacy of brief prorogation in this special kind of circumstance, and (more surprisingly) to my lectures about judicial power, is “executive hegemony”, an “objective of equipping the Government to ensure that it governs on its own terms and that Parliament is denied the opportunity to stop it from doing so.” But I oppose any such goal or objective, which Elliott could scarcely have imagined had he kept in mind the actual premises articulated, or visible, in my Telegraph article.
Here, in ascending order of cumulative importance, are five such premises which have gone missing in Elliott’s critique.
First, the context is a vast, multi-dimensional exercise in foreign policy, not the less so because also uniquely immediate in impact on our law, public finances and, per the Miller majority, constitution. Its multi-dimensionality and international intricacy demands the kind of access to information, and rational deliberation about and responsiveness to information, that only a government (and a dedicated civil service) with 24/7 responsibility can well initiate and process.
Second, the oversight and frame-setting of government that of course our legislature’s elected chamber should maintain, and the framework of law (including statutes once they are enacted) that of course must limit and channel governments’ conduct, have in this great affair of state been elaborately provided for by Parliament itself. My article, pace Elliott, made less of the referendum result than of the Parliamentary approvals that preceded and followed it – and not just the EUNoWA 2017, but also its parliamentary antecedents and then the 2018 Act and the timetables it established both for Parliament and for the legal effects of withdrawal.
Third, the Commons has deliberately chosen to leave our government in the hands of the present set of ministers in preference to any other set that might command the support of a majority for carrying on that government at large. Westminster democracy depends on balancing the elected branch and the executive so that neither can pursue a particular policy without the acquiescence of the other.
Fourth, a fact omitted in Elliott’s account of my argument: the leader of the parliamentary manoeuvres had (in the Commons) identified their purpose as “a fundamental realignment of the relationship between the civil service (!), Government and Parliament”. To show that these manoeuvres and associated Speaker’s rulings coalesce to damage the established constitutional balance, my article cited the cogent paper by Sir Stephen Laws and Richard Ekins. To show that they were constitutionally illegitimate manoeuvres, both their paper and my article considered them, with the rulings, first as each a purposive set and second in their combined effect (not forgetting the manoeuvres’ context: refusal to withdraw confidence and face the electorate).
Fifth, the dangerous combined effect to which my article pointed was not the setting aside of the referendum result – which could be legitimately sought and done by Parliament – but above all the imminent risk that Her Majesty might be confronted with conflicting advice, by the two Houses for assent to a Bill and by her ministers to withhold that assent.
Elliott, like many others, loosely assimilates withholding assent with “veto”. There is a different looseness in my article’s talk (in keeping with just about everyone else’s) of ministerial advice to withhold assent. In the context of the United Kingdom, that phrase overlooks an important fact that differentiates us from countries which share our monarch through Governors-General as well as from other countries which have a Westminster system of responsible government but under a President of some kind. For, as I noted in a letter to the Times on April 6 (scroll down) and the account of assent in Erskine May brings to light, our UK system interposes a politically responsible minister, the Lord Chancellor, between Her Majesty and the two Houses. Submission for assent of a Bill or set of Bills passed by the two Houses is first to the Lord Chancellor, and there is no even conventionally defined period between passing’s completion and the Bill or Bills’ resultant submission by him to Her Majesty. Elsewhere, so far as I am aware, a Bill’s submission for assent is done directly, by some officer of the legislature.
The reason for the difference is evident. A Governor-General or President holds office by appointment made by some politically responsible authority. Not so the hereditary monarch. Hence the exceptionally limited range of discretionary or “reserve” authority attributed to Her Majesty within UK law and conventions, as compared with otherwise similar systems for balancing elections, legislative operations, and the executive.
Elliott argued in January that (i) ministers should never tender advice to the Queen to withhold assent from a “duly enacted (sic) Bill”, and (ii) if they did, she has the constitutional right and duty to “disregard it”. Both theses, especially the second, make light of the variety of circumstances in which there may be live dispute about whether a Bill was “duly” passed, and/or about whether the circumstances as they are evolving during the indeterminate or under-determined period since the Bill’s passing, or in some other unusual way, make assent to it contrary to the public good (including perhaps of the monarchy itself). The idea that the Queen should disregard the advice of ministers – ministers from whom the elected House has deliberately not withdrawn its confidence and thus has left to carry on Her Majesty’s government – including advice about the illegality or constitutional impropriety of a Bill, does not sufficiently attend to the vulnerabilities of and constraints upon a constitutional hereditary monarch.
As if to forestall plunging the Queen into a conflict of advice such as the potentially imminent conflict my article expressed anxiety about (and suggested might be headed off by brief prorogation of an already unusually extended parliamentary session), our historic system puts the Lord Chancellor in a position to delay the submission of the Houses’ “advice”. During that delay, which might even last until the session ends (and with it any Bill not yet assented to), the Queen would not have had any relevant advice tendered to her, either by the Houses or by ministers, and hence would remain above the fray.
Such delay would of course be politically contentious, since for a very long time, during which generations of Speakers and other Chairs have upheld the rules associated with the principles of financial initiative and government control of business, submission for assent has been a formality. Responsibility for the delay would rest entirely with the government of which the Lord Chancellor is a member.
That responsibility, and the lawfulness and propriety of such delay, is all further indicated by the required mechanics of the actual assent, mechanics deliberately retained, as the normal legal requirements for the modern era, by the Royal Assent Act 1967. What is involved is not only the royal signing of the Bill but also sealing with Great Seal, for which, by the Great Seal Act 1884, it is legally necessary to have a warrant countersigned by one or other of a conspicuously political set of ministers: “by the Lord Chancellor, or by one of Her Majesty’s Principal Secretaries of State, or by the Lord High Treasurer, or two of the Commissioners of Her Majesty’s Treasury”. The live constitutional point, in relation to similar machinery for the Crown’s involvement in our government of overseas territories, was misunderstood by a majority of the Law Lords in Quark Fishing, as was soon acknowledged by an overlapping majority in Bancoult [2008] UKHL 61, who cited ([39]) a paper of mine that summarised (paras. 15-18) relevant considerations and authorities about the interlocking requirements of constitutional monarchy, executive responsibility and elective-legislative control in the United Kingdom’s democracy.
Parliament is not Congress, empowered by Constitution and statute to make laws without or against the will of the Head of State. Parliament makes law – acts as Parliament – only when all three of its elements act in coordination. The Queen’s part in this – her assent – is an act of responsible government performed and performable only on the advice and political responsibility of her ministers.
My Times letter’s thesis was that the passing of the European Union (Withdrawal) (No. 5) Bill defies what Erskine May calls ‘a principle of the highest constitutional importance, that no charge on public funds… can be incurred except on the initiative of the Crown’. Rather like many a private tax-evasion scheme, the Bill seeks to circumvent, evade, various rules that give effect to the principle. It would impose on the Prime Minister the obligation to exercise the Crown’s initiative in initiating the incurring of the expenses of extending EU membership; on that and other grounds, it will of course be contended that the Bill itself is not ‘for incurring’ a charge on public funds. But the scheme’s evasion of ‘a principle of highest constitutional importance’ is quite clear enough to be reciprocated by a constitutionally legitimate political decision to withhold royal assent, not by advice to the Queen but by delay. The delay’s appropriate rationale would be to protect Her Majesty while pushing back against the Commons’ defiance of constitutional principle (and the Lords’ opposition- party-whipped acquiescence in it), while obliging the Commons to face up to its political and constitutional responsibility.
That responsibility, complicated and obscured by the Fixed Term Parliaments Act 2011, is at the root of the present crisis, whose elements and sources make little or no appearance in Elliott’s critique. It is the responsibility to choose between allowing the government its historically proper initiative (no more and no less) in foreign and financial affairs, or finding an alternative set of ministers to undertake that initiative who do enjoy stable majority support, or facing the electorate in a general election designed to choose the government (by choosing members of a new House of Commons).
John Finnis FBA is Professor Emeritus of Law & Legal Philosophy at the University of Oxford and Biolchini Family Professor of Law in the University of Notre Dame.
(Suggested citation: J. Finnis, ‘Royal Assent – A Reply to Mark Elliott’, U.K. Const. L. Blog (8th Apr. 2019) (available at https://ukconstitutionallaw.org/))
I agree with Mark Elliott in finding my April 1 argument about prorogation and assent astonishing and monstrous, once the argument’s important premises have been omitted, as he has omitted them. And it is left even more objectionable when he has attributed to it a premise, two assumptions, and a goal each far from my thinking and writing. At the root of his misapprehensions is an important mistake about constitutional monarchy.
The premise he attributes to me is that it is wrong for the House to undertake indicative votes, or to set aside Standing Orders to do so. But I said I was concerned about “imminent operations” of a House that had already conducted such unusual indicative votes. The operations I said I was concerned about were something different: to “override Government resistance by contempt rulings, or even by passing in both Houses a Bill for imposing statutory control of our dealings with the EU.” (And though it is generally imprudent for Parliament to micro-manage our dealings with foreign powers, I do not, pace Elliott, see anything constitutionally illegitimate in statutory controls on our dealings with the EU.) The first assumption Elliott attributes to me is that in these matters, what is normal is normative. To be sure, no one should try to deduce Ought from Is. And everyone should agree that, even when custom and usage are rightly treated, for our common good, as needed for beneficial coordination and therefore normative, there can be appropriate occasions for setting them aside. The Standing Orders and practice of the Commons are not rarely set aside legitimately.
The second assumption attributed to me is that the executive is “the primary constitutional actor” in whose role “Parliament is no more than an unwelcome interloper”. But my works celebrate Parliament’s unconditional supremacy over the executive as a source of judicially enforceable law (which includes also common law subject to, though not derived from, statute), and of statutory boundaries for all executive conduct. And the proper executive, I hold, is that set of ministers whom a majority of the Commons have given their support to without since withdrawing it.
The goal he attributes to my thesis about the legitimacy of brief prorogation in this special kind of circumstance, and (more surprisingly) to my lectures about judicial power, is “executive hegemony”, an “objective of equipping the Government to ensure that it governs on its own terms and that Parliament is denied the opportunity to stop it from doing so.” But I oppose any such goal or objective, which Elliott could scarcely have imagined had he kept in mind the actual premises articulated, or visible, in my Telegraph article.
Here, in ascending order of cumulative importance, are five such premises which have gone missing in Elliott’s critique.
First, the context is a vast, multi-dimensional exercise in foreign policy, not the less so because also uniquely immediate in impact on our law, public finances and, per the Miller majority, constitution. Its multi-dimensionality and international intricacy demands the kind of access to information, and rational deliberation about and responsiveness to information, that only a government (and a dedicated civil service) with 24/7 responsibility can well initiate and process.
Second, the oversight and frame-setting of government that of course our legislature’s elected chamber should maintain, and the framework of law (including statutes once they are enacted) that of course must limit and channel governments’ conduct, have in this great affair of state been elaborately provided for by Parliament itself. My article, pace Elliott, made less of the referendum result than of the Parliamentary approvals that preceded and followed it – and not just the EUNoWA 2017, but also its parliamentary antecedents and then the 2018 Act and the timetables it established both for Parliament and for the legal effects of withdrawal.
Third, the Commons has deliberately chosen to leave our government in the hands of the present set of ministers in preference to any other set that might command the support of a majority for carrying on that government at large. Westminster democracy depends on balancing the elected branch and the executive so that neither can pursue a particular policy without the acquiescence of the other.
Fourth, a fact omitted in Elliott’s account of my argument: the leader of the parliamentary manoeuvres had (in the Commons) identified their purpose as “a fundamental realignment of the relationship between the civil service (!), Government and Parliament”. To show that these manoeuvres and associated Speaker’s rulings coalesce to damage the established constitutional balance, my article cited the cogent paper by Sir Stephen Laws and Richard Ekins. To show that they were constitutionally illegitimate manoeuvres, both their paper and my article considered them, with the rulings, first as each a purposive set and second in their combined effect (not forgetting the manoeuvres’ context: refusal to withdraw confidence and face the electorate).
Fifth, the dangerous combined effect to which my article pointed was not the setting aside of the referendum result – which could be legitimately sought and done by Parliament – but above all the imminent risk that Her Majesty might be confronted with conflicting advice, by the two Houses for assent to a Bill and by her ministers to withhold that assent.
Elliott, like many others, loosely assimilates withholding assent with “veto”. There is a different looseness in my article’s talk (in keeping with just about everyone else’s) of ministerial advice to withhold assent. In the context of the United Kingdom, that phrase overlooks an important fact that differentiates us from countries which share our monarch through Governors-General as well as from other countries which have a Westminster system of responsible government but under a President of some kind. For, as I noted in a letter to the Times on April 6 (scroll down) and the account of assent in Erskine May brings to light, our UK system interposes a politically responsible minister, the Lord Chancellor, between Her Majesty and the two Houses. Submission for assent of a Bill or set of Bills passed by the two Houses is first to the Lord Chancellor, and there is no even conventionally defined period between passing’s completion and the Bill or Bills’ resultant submission by him to Her Majesty. Elsewhere, so far as I am aware, a Bill’s submission for assent is done directly, by some officer of the legislature.
The reason for the difference is evident. A Governor-General or President holds office by appointment made by some politically responsible authority. Not so the hereditary monarch. Hence the exceptionally limited range of discretionary or “reserve” authority attributed to Her Majesty within UK law and conventions, as compared with otherwise similar systems for balancing elections, legislative operations, and the executive.
Elliott argued in January that (i) ministers should never tender advice to the Queen to withhold assent from a “duly enacted (sic) Bill”, and (ii) if they did, she has the constitutional right and duty to “disregard it”. Both theses, especially the second, make light of the variety of circumstances in which there may be live dispute about whether a Bill was “duly” passed, and/or about whether the circumstances as they are evolving during the indeterminate or under-determined period since the Bill’s passing, or in some other unusual way, make assent to it contrary to the public good (including perhaps of the monarchy itself). The idea that the Queen should disregard the advice of ministers – ministers from whom the elected House has deliberately not withdrawn its confidence and thus has left to carry on Her Majesty’s government – including advice about the illegality or constitutional impropriety of a Bill, does not sufficiently attend to the vulnerabilities of and constraints upon a constitutional hereditary monarch.
As if to forestall plunging the Queen into a conflict of advice such as the potentially imminent conflict my article expressed anxiety about (and suggested might be headed off by brief prorogation of an already unusually extended parliamentary session), our historic system puts the Lord Chancellor in a position to delay the submission of the Houses’ “advice”. During that delay, which might even last until the session ends (and with it any Bill not yet assented to), the Queen would not have had any relevant advice tendered to her, either by the Houses or by ministers, and hence would remain above the fray.
Such delay would of course be politically contentious, since for a very long time, during which generations of Speakers and other Chairs have upheld the rules associated with the principles of financial initiative and government control of business, submission for assent has been a formality. Responsibility for the delay would rest entirely with the government of which the Lord Chancellor is a member.
That responsibility, and the lawfulness and propriety of such delay, is all further indicated by the required mechanics of the actual assent, mechanics deliberately retained, as the normal legal requirements for the modern era, by the Royal Assent Act 1967. What is involved is not only the royal signing of the Bill but also sealing with Great Seal, for which, by the Great Seal Act 1884, it is legally necessary to have a warrant countersigned by one or other of a conspicuously political set of ministers: “by the Lord Chancellor, or by one of Her Majesty’s Principal Secretaries of State, or by the Lord High Treasurer, or two of the Commissioners of Her Majesty’s Treasury”. The live constitutional point, in relation to similar machinery for the Crown’s involvement in our government of overseas territories, was misunderstood by a majority of the Law Lords in Quark Fishing, as was soon acknowledged by an overlapping majority in Bancoult [2008] UKHL 61, who cited ([39]) a paper of mine that summarised (paras. 15-18) relevant considerations and authorities about the interlocking requirements of constitutional monarchy, executive responsibility and elective-legislative control in the United Kingdom’s democracy.
Parliament is not Congress, empowered by Constitution and statute to make laws without or against the will of the Head of State. Parliament makes law – acts as Parliament – only when all three of its elements act in coordination. The Queen’s part in this – her assent – is an act of responsible government performed and performable only on the advice and political responsibility of her ministers.
My Times letter’s thesis was that the passing of the European Union (Withdrawal) (No. 5) Bill defies what Erskine May calls ‘a principle of the highest constitutional importance, that no charge on public funds… can be incurred except on the initiative of the Crown’. Rather like many a private tax-evasion scheme, the Bill seeks to circumvent, evade, various rules that give effect to the principle. It would impose on the Prime Minister the obligation to exercise the Crown’s initiative in initiating the incurring of the expenses of extending EU membership; on that and other grounds, it will of course be contended that the Bill itself is not ‘for incurring’ a charge on public funds. But the scheme’s evasion of ‘a principle of highest constitutional importance’ is quite clear enough to be reciprocated by a constitutionally legitimate political decision to withhold royal assent, not by advice to the Queen but by delay. The delay’s appropriate rationale would be to protect Her Majesty while pushing back against the Commons’ defiance of constitutional principle (and the Lords’ opposition- party-whipped acquiescence in it), while obliging the Commons to face up to its political and constitutional responsibility.
That responsibility, complicated and obscured by the Fixed Term Parliaments Act 2011, is at the root of the present crisis, whose elements and sources make little or no appearance in Elliott’s critique. It is the responsibility to choose between allowing the government its historically proper initiative (no more and no less) in foreign and financial affairs, or finding an alternative set of ministers to undertake that initiative who do enjoy stable majority support, or facing the electorate in a general election designed to choose the government (by choosing members of a new House of Commons).
John Finnis FBA is Professor Emeritus of Law & Legal Philosophy at the University of Oxford and Biolchini Family Professor of Law in the University of Notre Dame.
(Suggested citation: J. Finnis, ‘Royal Assent – A Reply to Mark Elliott’, U.K. Const. L. Blog (8th Apr. 2019) (available at https://ukconstitutionallaw.org/))
An article in the Sunday Times by Professor Richard Ekins and Sir Stephen Laws QC advised that the Monarch could withhold Royal Assent to a bill passed if advised to do so by ministers. Robert Craig has also argued for that position in a blog post, making clear why in his view that is the democratically legitimate position. Professors Mark Elliott and Thomas Poole both refute these views, but recognize a prima facie tension between a constitutional convention that the Monarch follow ministerial advice on the one hand, and a convention that the Monarch almost automatically give Royal Assent to duly passed bills on the other. Poole assumes for the sake of argument that they might be in conflict, and argues that were it so, the convention on Royal Assent would prevail. I agree with him so far as that argument goes. (Professor Poole also alludes to the view that I detail further below as probably the better view). Mark Elliott recognizes the tension but says it would be a mistake to see an actual conflict between the conventions. He argues that the convention on following ministerial advice simply does not apply to the exercise of Royal Assent, for ‘There is absolutely no uncertainty when it comes to granting royal assent, and so Ministerial advice is beside the point.’ I agree with Professor Elliott’s conclusion but want to illustrate it in a way that addresses more fully some of the arguments to the contrary. I argue that the key distinction here is that the convention on ministerial advice does not apply to the Crown’s legislative function when the Monarch acts as Crown-in-Parliament. It is reserved for most of her executive functions regarding matters outside the legislative process, chiefly for those functions exercised in what is often called Crown-in-Council. Let’s take the most obvious starting point. Every Act of the UK Parliament commences with the following preamble:
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
The role of ministers is conspicuously absent in this formula. Note that the Commons and Lords not only provide ‘consent’ but also ‘advice’ in the matter, and she acts by the authority of that composite Parliament. Anne Twomey has written a magisterial book covering the law and practice in Westminister systems around the Commonwealth: The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (Cambridge University Press, 2018). She confirms that as a matter of practice in the UK, Royal Assent is given by the Queen signing letters patent prepared by the Clerk of the Crown and no advice is given by ministers. (p. 627; see also the Royal Assent Act 1967). She recognizes that there is a paucity of any precedents on the question of whether consent can be refused on the advice of ministers. But there is some UK practice of a less dramatic kind. At pp. 628-29, Twomey recounts an occurrence that is highly material to the present question in the UK:
The British position was clarified within the British Government when preparing a response in 1972 to a letter by a British subject contending that the Queen should refuse assent to the European Communities Bill 1972. The subject, Mr McWhirter, argued that the grant of royal assent would be in violation of the Queen’s Coronation Oath as the bill would fetter the powers of Parliament. The first draft of a response to this complaint stated that it is an ‘established constitutional convention that the Royal Assent will not be refused to Bills which have been passed by both Houses of Parliament and which Ministers advise should receive assent.’ This was later corrected, upon the advice of the Lord Chancellor’s Office, on the ground that ministerial advice is not tendered in relation to the grant of royal assent. The letter, as altered to state the correct position, provided that ‘it is an established constitutional convention indeed (it might be said) a custom of the realm – that the Royal Assent is not withheld from Bills which have been passed by both Houses of Parliament’.
This is the closest we have to an official pronouncement on exactly this subject, opined on by the then Lord Chancellor, confirmed by letter from the Monarch. In another case recounted by Twomey, the Governor General of New Zealand was advised in 1877 by then Prime Minister George Grey to refuse assent to a Bill that had passed through the New Zealand parliament prior to Grey taking office. The Governor refused this advice, arguing that the Bill must be opposed in parliament and not by way of advice to him to refuse assent. When Prime Minister Grey complained to the UK Secretary of State for the Colonies about the issue, arguing that the Governor was constitutionally obligated to follow ministerial advice, the Secretary of State backed the Governor and rejected the Prime Minister’s contention. (pp. 646-647) Professor Twomey’s book is relied on by Robert Craig for the view that the Queen must withhold Royal Assent on ministerial advice. But her own view is different, and in my view comes across differently in her book. In her discussion of the issue of ministerial advice to refuse assent, she concludes her own analysis of the issue by questioning the salience of the very distinction between responsible or representative government that Craig relies on in his argument:
The critical question is whether a vice-regal officer is still obliged to act upon the advice of ministers to refuse assent if those ministers appear to have lost the confidence of the House or at least failed to hold its confidence in relation to the particular bill. The principle of responsible government is a two-way street – while the head of state must act upon the advice of responsible ministers, ministers must maintain their status as responsible to Parliament in order to be entitled to give that advice. The whole raison d’être of responsible government is to give primacy to Parliament by ensuring executive accountability to it. It would seem illogical, therefore, for the principles of responsible government to be relied upon to override the will of Parliament.
Twomey also quotes a 2013 blog post by Nick Barber at length, which argues that Royal Assent should not be withheld in such a situation but follow by automatic operation of convention. That concludes her discussion of that particular issue. Indeed, she has written again recently in a blog post in Australia confirming that in her view, ministerial advice to refuse Royal Assent should be ignored and would be politically foolish. It is at any rate in those discussions that Twomey has, as did Nick Barber in 2013, addressed the argument that the refusal of royal assent would be democratically appropriate on the theory that we have a responsible rather than representative government. That argument, as I understand it, assumes that the Commons can only be taken to express a formal lack of confidence in a Government by passing a motion of non-confidence. But there is no reason to take that view, for, as Twomey observes, it can and historically has been found in relation to particular bills as well. The Fixed Term Parliaments Act 2011 expressly enhances the power of the Commons to disagree with the Government without asking it to resign – and it has used these kinds of powers in this regard on numerous occasions in the present Parliament. The Wright Reforms to the House were also premised on the assumption that the House’s powers against the Government should be strengthened in ways more diverse than the blunt tool of non-confidence: see Rebuilding the House (First Report, Session 2008-9, HC 1117). In short: there are several ways in which the House of Commons can express a lack of confidence in a particular measure, Bill, or general conduct of business. The disapplication of Standing Orders and the passage of a Bill contrary to the Government’s wishes are cases in point. To be fair, Twomey does acknowledge academic views that support the view that the Queen should heed ministerial advice: ‘The predominant academic view, which is strongly influenced by an aversion to the prospect of the exercise of any reserve power, is that the Sovereign and her vice-regal representatives must act upon the advice of responsible ministers.’ (pp. 622-623) In a recent letter to the Times, a significant number of senior constitutional lawyers took the opposite view (one that in fact aligns with Twomey’s own view). That suggests that the view Twomey refers to is predominant in the printed scholarly sources to which she quite properly refers. That is a far cry from what is the dominant view among present scholars, most of whom never imagined such an issue called for an explicit view. At any rate, the ground stated for the view Twomey discusses as predominant is what needs to be noted here. It is fear of the ‘reserve power’, i.e. the power of the Monarch to withhold royal assent without ministerial advice. Precisely that kind of power has been affirmed by scholars like Rodney Brazier, and countenanced by Geoffrey Marshall. And that is not a remote concern. Much of Twomey’s analysis considers situations where the reserve power could be exercised without ministerial advice, including in cases where the Monarch or her representatives would come to their own independent view of whether the Bill satisfies legality and validity requirements (pp. 652ff) or subverts the principles of representative democracy or human rights (pp. 664-672). Brazier has been cited often for the claim that Royal Assent can be withheld on ministerial advice. But will those advocating the Queen’s power to withhold Assent now also subscribe to Brazier’s view that the Queen has the power to act as the ‘ultimate guardian of the constitution’ and refuse assent to a Bill she considers, on his theory at any rate, to be ‘a permanent subversion of the democratic basis of the constitution’? Whether or not we live in a parliamentary democracy turns on the answer given by people in authority to that question. The view of the signatories of the letter to the Times seems clearly to be ‘no’ – insofar as the letter states that the Queen’s role in relation to a passed bill is ‘purely ceremonial’ and that, in common with the statement on the website of Parliament, Royal Assent is a ‘formality.’ Much of the debate has thus been concerned with whether the Monarch could refuse royal assent even where ministers advise her to grant it. The case for following advice there is democratic. But in my view it is superfluous. The advice of both Houses of Parliament provides the necessary and sufficient democratic authority. The legally salient distinction here is the Queen’s legislative function as Crown-in-Parliament, and its difference from her executive functions often descried as Crown-in-Council. This does not deny that the Sovereign as ‘Crown’ follows advice in matters connected to calling, dissolving, or proroguing Parliament, or in respect of certain appointments (e.g. of peers to the House of Lords). But those are not her role in the legislative process. Royal Assent is an instance of a prerogative power to which ministerial advice does not apply but to which other constitutional conventions apply. It is in this respect much like the convention that governs the appointment of a new Prime Minister following an election. There is no ministerial advice to be given, at least to the extent that such would draw the Queen into party politics: see the Cabinet Office, Cabinet Manual, October 2011, p. 15. Rather, the convention is that she appoints the person who is in the best position to receive the majority of support of the House of Commons. Here, as with the convention of Royal Assent in respect of her legislative function, the constitutional convention goes with the grain of a representative democracy and governs her use of the prerogative power entirely independently of Government views. My claim is therefore that there is no convention that ministerial advice be accepted in relation to exercise of Royal Assent, for the Queen follows, as the preamble to all enactments states, the advice of the two Houses of Parliament and not the advice of the Government. The proffering of ministerial advice may in some kinds of cases be permissible. It has been made in various cases elsewhere in the Commonwealth and in some places is explicitly incorporated into the legislative process. In the UK, however, the Monarch is not bound to accept that advice. It is a separate question, in fact, and not explored seriously here, whether in circumstances such as the present, it would be unreasonable and hence unlawful for ministers to advise the Queen to withhold consent. To do so would draw her into a political dispute, it would imply wrongly that she is bound to follow ministerial advice, and it would lead to a constitutional change in the settled practice being led not only without parliamentary support (as is required in the Miller case) but exactly contrary to the expressed wishes of the two Houses of Parliament. In my view, furthermore, ministerial advice forms no part of the legislative process in the UK and hence is not protected from judicial scrutiny by Article 9 of the Bill of Rights 1689. Whether any legal dispute arising under these or other terms would be regarded as justiciable by the courts is yet a further matter, also for another day – one that hopefully never comes.
Jeff King is a Professor of Law at the Faculty of Laws, University College London. He thanks Anne Twomey for comments and Robert Craig, Gavin Phillipson, Tom Hickman QC and Tom Poole for previous discussions.
(Suggested citation: J. King, ‘Can Royal Assent to a Bill be Witheld If So Advised by Ministers?’ U.K. Const. L. Blog (5th Apr. 2019) (available at: https://ukconstitutionallaw.org/))
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