Tag: British politics

The truth about Crown Consent

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.

Lords Reform: A Real Farce

The Joint Committee on the Draft House of Lords Reform Bill published its report on the government’s proposals yesterday. There weren’t really any surprises: the committee recommended an 80 percent elected/20 percent appointed House of 450 members, each of whom would serve for a non-renewable 15-year-term. The elected members would be chosen using a modified version of the single transferable vote method, while the appointed members would be chosen by a statutory Appointments Commission (though the Prime Minister would retain the ability to nominate a limited number of individuals to serve as Ministers in the House of Lords). The Church of England would continue to be represented by bishops, though their number would be reduced to 12. But I have a feeling that this particular scheme is going to go the way of all the other schemes that have been proposed since Lords reform began in 1911.

As always, the stumbling block will be the issue of the relationship between the two Houses of Parliament. Right now, the House of Lords is subordinate to the House of Commons. The Parliament Acts 1911 and 1949 allow the Commons to pass legislation without the Lords’ consent, while the Salisbury Convention states that the Lords will not reject government bills that arise from manifesto commitments.

But although the Lords can no longer fight the Commons on equal terms, they still play a valuable role as a revising chamber. Unlike in the Commons, where legislation is often nodded through without any real scrutiny, the Lords look at every clause of every bill. The Lords is traditionally a much less partisan place than the Commons, and many of its members have real-world experience beyond the Westminster village. The Lords can look at legislation from a different perspective, and their amendments often go a long way toward improving the final product (in fact, the vast majority of Lords amendments are subsequently agreed to by the Commons).

The main problem with the government’s proposals is that they assume that the reformed House of Lords will remain subordinate to the Commons. But while it makes sense for an appointed body to defer to the will of an elected body, it’s hard to see why an elected House of Lords should have to give way. After all, one could argue that it would have greater democratic legitimacy since its members would be chosen through a form of proportional representation rather than first-past-the-post. It would only be a matter of time before the two Houses came into serious conflict, and it’s difficult to see how the primacy of the Commons could survive. Legislative gridlock is all-too-common here in America, but it would throw a real monkey wrench into the British system.

The government’s proposals face a perilous journey to the statute book. I suspect that, deep down, most MPs are aware of the absurdity of one elected chamber having to kowtow to another elected chamber. There are also many Conservative MPs who would love to torpedo Lords reform in order to give Nick Clegg and the Liberal Democrats a symbolic middle finger. If the newspaper reports are to be believed, there are even Cabinet ministers who are quietly encouraging rebellion. Even if the bill squeaks by the Commons, it faces massive opposition in the Lords. Theoretically, the government could use the Parliament Acts to force the bill onto the statute book, but that would require them to get the bill through the Commons twice. Given how divided the Coalition is on the subject of Lords reform, I’m not sure the government would want to re-fight what’s bound to be a bruising battle.

Despite what Nick Clegg and company say now, I suspect the House of Lords will remain in its current form for many years to come.