The Queen’s Consent – a strange and obscure feature of the constitution of the United Kingdom – and why it should be abolished (original) (raw)
8th February 2021
This post is about a thing of which you may not have heard.
The Queen’s Consent.
No, not that.
The Queen’s Consent is instead an odd and generally unknown feature of the constitution of the United Kingdom.
It is in the news today because of some investigative reporting by the Guardian newspaper.
Guardian front page, Monday 8 February 2021: Queen lobbied for change in law to hide her wealth pic.twitter.com/UIeQdFxvhC
— The Guardian (@guardian) February 7, 2021
The news report is here and their explainer about the Queen’s Consent is here.
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So what is the Queen’s Consent – and why, if at all, does it matter?
Let us start with what it is not.
The Queen’s Consent is not the ‘royal assent’ that is given to a bill passed by parliament that transforms it, by legal magic, into an act of parliament.
True, the royal assent is itself not widely understood.
Many think it is the queen herself that signs the legislation, but royal assent to legislation is done on the monarch’s behalf (and the last monarch to give royal assent personally was Victoria).
But Queen’s Consent is a different constitutional beast.
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Queen’s Consent is the right of the monarch (and the heir to the throne) to be consulted on – and thereby to veto – any legislation that affects the private interests of the crown.
Imagine if the constitution of the United States provided formally for the president of the day – Donald Trump or otherwise – to intervene in congress to stop or to amend proposed legislation that affected the financial interests of the president or the president’s family.
That is what the Queen’s Consent provides for in the United Kingdom.
It is a structural right to lobby beyond the dreams of any cynical Westminster ‘public affairs’ firm.
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There are a couple of things to note before we get onto just how strange this constitutional device is.
First, this is not about placing the crown beyond or above the law – it is instead (ahem) ‘upstream’ from the law being in place.
It is about being able to shape the law before it takes any effect.
Second, it is not about the public powers of the crown – the so-called ‘royal prerogative’ though the crown also has the right also to be consulted about legislation that affects those powers.
This is about the right to be consulted about proposed laws that affect the crown’s private interests rather than its public powers.
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And now we come to four strange things about the Queen’s Consent.
First – and notwithstanding today’s front page splash in the Guardian – a good deal about the Queen’s Consent is in the public domain, hiding in plain sight.
It is just that few people know about it or care.
In the cabinet office’s guide to legislation for civil servants it warrants an entire chapter.
There is also an entire 32-page pamphlet devoted to the topic for the benefit of those who draft legislation.
The detailed ‘Erskine May’ book of authority on parliamentary procedure also has a section on the subject.
(Look carefully at the wording of what Erskine May says here.)
And in 2014 there was even a parliamentary select committee report on the practice.
But unless you are a constitutional obsessive you would, however, not be aware of any of this.
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The second curious feature of the Queen’s Consent is perhaps the most extraordinary one.
The Queen’s Consent has no legal basis whatsoever.
There is no statute, nor even (it seems) any parliamentary resolution.
It is instead is something that is just, well, done.
If you scroll back up you will see that even Erskine May does not even offer any authority for the procedure.
And if you look at the practitioner’s legal encyclopaedia Halsbury’s Laws of England the authority that is given for the practice is Erskine May.
The 2014 select committee took evidence from specialists in parliamentary procedure and constitutional law experts – and the select committee could not identify any legal basis for the practice.
The only (supposed) authority is that it is ‘long-established’.
Given that the parliamentary bible Erskine May insists that the Queen’s Consent is _‘required_‘ one would hope (and even expect) there to be some legal basis for the consent, but there is none.
To the extent that the Queen’s Consent has any formal basis at all, it is entirely based on parliamentary procedure.
And this means that it would be easy to abolish, for what is giveth by parliamentary procedure can be be taketh away by parliamentary procedure.
No law would need to be passed at all.
The queen would not need to be consulted, either by the Queen’s Consent or otherwise.
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The third oddity about the Queen’s Consent is similar to the second.
For just as there is no visible legal basis for this structural bias, there is also hardly any visible effect.
It is all done in secret.
And this is why today’s Guardian report has some significance.
It appears to be a documented example where the Queen’s Consent was used to actually shape legislation.
Yes, it is from nearly fifty years ago.
And yes, it is partly dependent on a 1975 speech from Geoffrey Howe in parliament, who delightfully savages us like a dead sheep all these years later.
But – given the secrecy that cloaks the use of the Queen’s Consent procedure, and the general restrictions on official records in the United Kingdom – that is the best evidence we are likely to readily get in practice.
Some will note the lack of evidence of this formal step having any effect and will contend from that lack of evidence that the formal step is merely a formality.
That there is nothing to look at here, and that there is nothing for us too worry our heads about.
But.
The evidence we do have indicates that the process is taken seriously and is intended to be practical.
Chapter 6 of the guide for those drafting legislation is insistent that notice be given to the court with sufficient time for it to have effect – and also that it should not be done prematurely.
None of this would be relevant, still less stipulated, if the stage was merely formal and ceremonial.
Those responsible for legislation are reminded again and again to make sure that the stage is treated so that it is efficacious for the crown.
Here it is worth noting that until fairly recently this guidance was hidden from public view using the excuse that it was covered by legal professional privilege – from the 2014 select committee report:
Steers on mere ceremonial steps are usually not anywhere close to being subject to legal professional privilege.
A further indication that the Queen’s Consent is a consequential stage rather than some ceremonial gimmick is the sheer detail of what has been and can be covered.
None of this would make sense if the Queen’s Consent was a mere formality.
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The fourth curious – and somewhat quaint and amusing – feature of the Queen’s Consent is how it make a private solicitors’ office a formal part of the constitution of the United Kingdom.
You would think this elevated role for a private individual this was the stuff of fiction – like George Smiley visiting Connie Sachs at her country cottage, or Sherlock Holmes visiting his brother at the Diogenes Club:
‘I did not know you quite so well in those days. One has to be discreet when one talks of high matters of state. You are right in thinking that he is under the British government. You would also be right in a sense if you said that occasionally he is the British government.’
But it is there in black and white.
For this formal stage of the Queen’s Consent a letter has to be sent to a private solicitor in Lincoln’s Inn Square:
The ‘language of the letters should be formal in nature’ – so presumably a bill could be frustrated if ‘Dear Sirs’ was followed by an incorrect ‘Yours sincerely’ – or even, gods forbid, there was not a ‘.’ after ‘Mr’.
It is all rather silly.
But what is not rather silly but rather serious is that that this is not to a lawyer in any public capacity in the royal household, and still less to the government’s own treasury solicitor, but to a private solicitor professionally charged with protecting and promoting private interests – and that the whole procedure is geared around the convenience of the private solicitor obtaining and then executing instructions from that solicitor’s private client.
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And this being England – and this is more an English trait rather than a British one – there is no express mention of ‘veto’ in any of the official documents.
The language used is in terms of a consent that is ‘required’ but the implications of the consent not given are left unspoken.
In practice, and given the lack of evidence of the consent being formally withheld, what this means is that the crown is given the right and opportunity to shape prospective legislation – or in the case today disclosed by the Guardian – to make alternative arrangements before the legislation passes.
The question is not about what happens if consent is not given, but what things need to change for the necessary consent to be given.
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There will be some who, even with all this information, will just shrug with a ‘so what?’.
There is no evidence – at least recent evidence – of the practice doing any harm.
But.
If the practice is, in fact, a mere formality then nothing will be lost with its abolition.
And if the practice does – as the procedure implies – have real effects, then it also should be abolished.
There is no good reason why the head of any state should have the privilege of the protection and promotion of their private interests by their private lawyer as a formal part of the law-making process.
This would be wrong it had been for the benefit of President Trump’s family for bills before congress, and it is just as wrong here.
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