The House of Commons’ Political and Constitutional Reform Committee is currently in the midst of an inquiry into one of the more arcane facets of parliamentary practice: Crown Consent.
Crown Consent is distinct from Royal Assent, which is what transforms a bill into an Act of Parliament. Crown Consent is basically an announcement on behalf of the Queen that she has consented to place her prerogative or interest (or both) at the disposal of Parliament for the purpose of a given bill. Similarly, if a bill affects the interests of the Prince of Wales in one of his many capacities, he has to give consent, too. The method of signifying consent and the timing of the announcement varies between the Lords and the Commons, though in both Houses, it must be signified by a Privy Counsellor. If it is not signified, the bill cannot be passed and, in some cases, it cannot even be debated.
The exact test for determining whether or not a bill requires Queen’s or Prince’s Consent is rather murky, though the Cabinet Office has published the internal guidance used by the Office of the Parliamentary Counsel (they’re the ones who draft bills). While some cases are fairly obvious (e.g. the Succession to the Crown Act 2013), others are more obscure (the Animal Welfare Act 2006)
Crown Consent has caused some sturm und drang lately, with some of the more excitable segments of the British press calling it a “secret royal veto.” Of course, like most of the Crown’s powers, the power to grant or withholds consent is exercised on the advice of ministers. Obviously, the government is going to advise the Queen to grant consent for all of its own legislation, and the Office of the Parliamentary Counsel’s guidance makes it clear that the government will recommend that consent be granted even if it opposes a bill (see section 7.4). That being said, there have been times where a government has refused to recommend that consent has been granted because ministers disagreed with a bill, such as the Peerage (Ireland) Bill in 1868 and the Titles (Abolition) Bill in 1964.
One of the most notable cases where Crown Consent was not signified was Tam Dalyell’s Military Action Against Iraq (Parliamentary Approval) Bill in 1999. This has generated a great deal of rather ill-informed commentary from the likes of the Guardian and the Huffington Post (the latter actually went so far as to headline an article “Queen Vetoed the Passing of War Powers to Parliament, Whitehall Documents Reveal”). But while it is true that the Crown Consent was not signified for that particular bill, contemporary press reports indicate that Tam Dalyell deliberately refused to seek consent. The BBC quoted him as saying “I am not going crawling to the Queen. This has nothing to do with her.” Now one might sympathize with his point of view, but the blame for the bill’s failure rests with him, not Buckingham Palace.
During their testimony before the Political and Constitutional Reform Committee, the clerks of both Houses of Parliament said that the requirement to seek Crown Consent is a matter of parliamentary practice, not law, so it can be abolished whenever Parliament wants. Although Crown Consent isn’t as sinister as the Guardianistas would like you to believe, it’s admittedly hard to see why it should continue. Unlike Royal Assent, which at least has a symbolic purpose, Crown Consent is little more than a fussy bit of parliamentary arcana. And although modern convention favors granting Crown Consent whenever necessary, it could still theoretically be used to stifle debate on a measure that the government didn’t like. It will be interesting to see what the committee ultimately recommends.
Codex Lochianus 