When a Bill is approved by the majority of the Commons and the Lords, it proceeds to the formality, (as described by Parliament’s own website) of receiving Royal Assent. It is a tradition which has occurred for centuries. A constitutional convention, it is another bizarre creation of the un-codified and multi-sourced UK constitution. The necessity of Royal Assent to legitimise a bill has been greatly criticized by academics and politicians (two groups you rarely see in agreement) in recent years. It is widely accepted that this particular prerogative power, among the many others, is exercised by the monarch with the approval of the political government. Even the least educated of us can spot the enormous paradox there, right?!
The silent and, ultimately deadly rule of the constitution is somewhat a legal wet fish. A constitutional monarchy sees a political government permitted to rule by the reigning monarch while the monarch reigns with the permission of the political government. As a result of this complexity, the UK legal system is a field of consents and conventions which can ultimately be decided by one body or another at any given time. The quagmire in each case does not arise out of the decision, but in fact out of the results of the decision. It is necessary then, when considering how necessary Royal Assent is to a Bill, it is vital to think about the repercussions of the refusal to grant Royal Assent.
Initially this is where the academics and politicians throw rhetoric into the constitutional cauldron. This only ever, however, born out of personal perception. It was lectured in Northumbria University that it would be impossible for Royal Assent to be refused. This was, it was urged, primarily a reflection of the fact that it is a convention and is thus not liable to be broken by the covenantor without anarchy ensuing. Likewise the political rhetoric is always that the Queen simply cannot refuse to grant Royal Assent as it is a principle of the constitution. The writers on the legalities of the prerogative, such as Parpworth, argue that because a convention has developed since Royal Assent was last refused by Queen Anne in the 18th century it cannot be overridden or ignored. The logical progression from this is to assume that the monarch is indeed a bobble-head figure with absolutely no discretion in the exercise of this prerogative. If this was entirely true then the constitutional canvas of the UK would be painted in much clearer colours.
The very fact this rule exists in the way it has developed is because it is a convention, and it is a convention because of the way it has developed. The breaking of this rule will not incur any legal penalties, and indeed if the Queen decides to refuse Royal Assent, it cannot be legally challenged. Here we encounter the murkiness of this particular convention then. Her Majesty cannot be forced to assent to a Bill, can she? Law students will tell you that she is compelled to, and academics and other proponents of a restricted monarchy will have you believe there is some invisible magic power which will prevent her refusal. However the same academics will argue that there are foreseeable circumstances in which it would be acceptable for the monarch to withhold or refuse to grant assent. Nothing short of understanding and consideration of the aftermath, which is political not legal, is that which governs the discretion to wield this royal prerogative.
An extreme situation which would be foreseeable was considered by Professor Brazier who argued it would be logical and understandable for the monarch to refuse to grant assent to a Bill which had not complied with procedural formalities in its progress. This only opens another very deep can of worms in which we must consider whether Parliament can in any way be bound by its predecessors, so it is worth giving this a wide berth for now. However, it does also lend to the view that lies at the heart of the convention. Would the monarch be carrying out the wishes of the political government or in fact opposing them in her refusal?
Even when Queen Anne did refuse Royal Assent it was, quite remarkably, at the advice of her government. It seems credible that the monarch should adhere to the advice of her political government elected by the people. However, this royal prerogative tends to be an issue upon which legal writers and researchers commonly contradict their own understanding of the UK constitution. Generally, while it is understood that there can be limits on parliament’s powers to legislate, for example, on racial discrimination to allow segregation, it is not argued that the monarch would be entitled to refuse Royal Assent to such as a Bill as a worthwhile form of checks and balances. That is essentially what the development of the constitution has created; a parliamentary system in which there are checks on unlimited power by the formalities of a three party Parliament. The Lords, the Commons and the monarch work together as Parliament to legislate for the UK. Does she have no say even when, perhaps, a bill violates the very principles and rules of the constitution?
I find that settlement hard to swallow. It is obvious that where a monarch decided to take umbrage to a popularly supported bill, or one which did not violate human rights etc., it would generate not just controversy but also frustration in the convention itself. Considering the judiciary have absolutely no sway in the monitoring or controlling of legislation there must be some limits somewhere. It is reminiscent of Lord Woolf’s comments that the courts have an inalienable responsibility to uphold certain principles, even against the supremacy of parliament. It is preferable, rather than seeing the monarch as a separate entity, to accept that parliament exists by virtue of itself and that in fact itself is a creature of the three entities and not constituent parts.
By this understanding we can accept that the Royal Assent prerogative can have discretion in its use by the monarch. It is not unthinkable for the Lords and Commons to disagree and whether the legislation is defeated or eventually passed following that disagreement does not give rise to a concern over the legitimacy of the statute. So too it is a progression that the monarch, as a constituent part of parliament, has the ability to challenge the ideals or objectives of specific bills.
While the proponents of the restrictive view on Royal Assent undoubtedly have the ultimate say in that the electorate will out, are they not in fact projecting their views of a somewhat more reformed legislative process than that which currently exists? The monarch certainly retains the right to wield royal assent and for one, I would defend the necessity of her ability to do so in countering the over-politicisation of our legislature. Unbridled power is never a positive attribute to any individual or body and this peculiar convention is an attempt at controlling and curtailing such authority where our constitution fails to provide otherwise. It should not be forgotten that the constitution is reactionary and develops according to necessity. For all the arguments against the monarch retaining discretion over royal assent then, it must continue to be a necessary formality.