On Crown consent

Crown consent has been in the news recently. For those who haven’t seen the stories, a couple of British newspapers reported that the Queen and Prince of Wales had used a ‘secret’ veto power to stop bills from making their way through Parliament. The reports gave the impression that the Queen and Prince were going out of their way to interfere with the legislative process, killing bills that they didn’t like. One as might expect, journalists are now trying to see if a link can be made between this supposedly secret veto and Prince Charles’ habit of writing to ministers regarding his particular hobbyhorses. In light of all this, a committee of the British House of Commons has decided to look into this so-called royal ‘veto’ power.

What lies behind these charges and concerns? The issue at hand is an opaque royal privilege called Crown consent. As outlined by the British Cabinet Office (PDF), this privilege requires that bills touching on the prerogatives of the Crown, the Crown Estate, the Duchy of Lancaster, and the property and interests of the Sovereign as a natural person be granted the Queen’s consent before they receive royal assent and become laws. Similarly, the Prince Charles’ consent is required for bills touching on the Duchy of Cornwall or his position as the Prince of Wales.

At first blush this privilege appears undemocratic and unjustifiable. Yet when one looks at how Crown consent is used and why is exists, the practice appears far less scandalous; it can even be defended.

The first point to note is that Crown consent is normally granted or withheld on the advice of ministers. Despite references to a royal ‘veto’, Crown consent is actually a privilege that is exercised on ministerial advice and with the executive’s concerns in mind. Likewise, it is up to ministers to secure the Crown’s consent for legislation, if need be. The idea that the Queen or Prince are running around refusing to consent to bills doesn’t stand up to scrutiny. While there may be very, very rare cases where the Queen might signal her personal opposition to a bill and warn her ministers that she would rather not grant consent, the decision is ultimately left with ministers and she must accept their choice.

Next, we should recognize that there are two types of Crown consent: prerogative consent and interest consent. Let’s take a look at the rationale behind both.

Prerogative consent is required for bills that affect the Crown’s prerogative powers. However, prerogative consent is not required if the Crown’s powers are not directly or substantially affected. The logic for maintaining prerogative consent is to protect key executive authorities and the constitutional powers of the Sovereign from ill-advised statutory infringements and alterations. A bill that tried to make parliamentary approval a precondition for exercising the Crown’s power to deploy armed forces should probably not be given consent unless it takes emergency circumstances and other exceptions into account. Likewise, a bill that attempted to terminate the Sovereign’s power to dismiss a prime minister might not be given the Crown’s consent unless it included alternative means of removing a head of government under certain situations.

Is prerogative consent democratic? I think so. The principle behind it is that the executive requires certain discretionary powers and that these authorities should only be circumscribed with great care and caution. Moreover, if Parliament is faced with a government that is withholding Crown consent on spurious grounds, then the House of Commons is free to withdraw its confidence in the government, and attempt to replace it with a new ministry that is willing to provide the Crown’s consent. In the same vein, the constitutional powers of the Sovereign should only be erased by legislation that provides equal or better protection for the constitution than the monarch’s personal discretion. And here again, if a government is seen as obstructionist or overly protective of the Sovereign’s constitutional powers, then the ministry can always be removed by the House of Commons.

Interest consent is required for bills that affect the Crown Estate, Duchies of Lancaster and Cornwall, and the personal interests and property of the monarch. This type of Crown consent exists to safeguard the political independence of the Sovereign. In the United Kingdom, the Sovereign meets regularly with the prime minister. Both the Sovereign and Prince of Wales can also express their personal views and concerns about matters of policy and state, though these are non-binding. In exceptional circumstances, furthermore, the Sovereign may be required to exercise her personal constitutional powers, and the Prince of Wales could be required to so do if named regent. To ensure that the Sovereign and Prince of Wales are independent when performing these functions, they must never make decisions under duress. Accordingly, interest consent exists to guarantee that parliamentarians are unable to target the Crown Estate or the personal property of the Queen or Prince in an effort to coerce or threaten the Sovereign or Prince of Wales. Now, this does not mean that Parliament cannot alter the Crown Estate. It has done so before and surely will again. But it does mean that the Queen cannot be easily threatened with a vast reduction in income or personal wealth as part of some scheme to sway her politically or get her to promote certain positions. Interest consent, then, exists to protect the impartiality of the constitutional monarch and head of state in the United Kingdom. (In Canada, a similar principle explains the generous financial privileges that were previously accorded to the Governor General.)

To conclude, it’s worth recalling that Crown consent applies to the Crown of Canada, too. However, insofar as Sovereign of Canada does not have Crown Estates or duchies, and the monarch interests and property as a natural person do not affect the how the Crown operates here, Canadian Crown consent involves prerogative consent alone.

6 thoughts on “On Crown consent

  1. What if the Sovereign owned some personal property in Canada, similar to when Edward VIII owned a ranch in Alberta? Would interest consent then apply in cases of legislation affecting that property?

    1. Good question. I suspect not, since it wouldn’t have any bearing on the monarch’s position in Canada. But it would certainly be possible to argue that it should. If I had my way, it would apply in that case.

  2. As usual, I’m genuinely not disagreeing with the majority of your points.

    That said… 😉

    I’m comfortable with Crown consent; and, I think that, like most people, that comfort has been earned by 60 years of extraordinary exercise of its use by HM.

    I understand, to some extent, the workings of the Crown Estate (and George III’s agreement to trade it for a Civil List income while transferring many things that he had had to pay for to the government (e.g., the Foreign Service).

    Equally, I can understand the historical evolution of the Duchy of Lancaster, and the Privy Purse for HM’s personal use (out of which she pays, amongst other things, for the minor royals).

    However, you argue (paragraph 8):

    …furthermore, the Sovereign may be required to exercise her personal constitutional powers, and the Prince of Wales could be required to so do if named regent. To ensure that the Sovereign and Prince of Wales are independent when performing these functions, they must never make decisions under duress.

    If this is a valid argument, then wouldn’t HRH The Princess Royal, who was listed as eligible to be a Counsellor of State from 1971-2003, have the right to some sort of “princess’ consent” since her income is received from the Privy Purse (which HM receives as Duke of Lancaster), and, as Counsellor of State, HRH The Princess Royal could have been called on to grant Crown consent (were HM out of the country).

    I think to understand the concern of some in the UK, it is useful to remember that HRH The Prince of Wales may be the head-of-state-in-waiting, but he is not Head of State. HM has brilliantly balanced her job with an ability to be perceived as being above politics. HRH The Prince of Wales, on the other hand, does not balance quite as well. He has, as Prince of Wales or heir apparent, no constitutional role in the government of the UK, or the other Commonwealth realms. He is heir, while he lives, but he may never be monarch (e.g., the first born of George II, George IV, and Victoria never succeeded to the crown).

    I understand HM being, when necessary, consulted on the Duchy of Cornwall’s interests because of her reversionary interests (should the estate be vacant), I don’t see an equivalent right for The Duke of Cornwall since no heir can be guaranteed of inheriting.

    You suggest that the “prince’s consent” is “normally granted or withheld on the advice of ministers”. On what are you basing that? The Chancellor of the Duchy of Lancaster is a Minister of the Crown; I can’t find reference to any equivalence for the Duchy of Cornwall.

    It’s easy for me to understand the concept that HM acts on advice of her ministry; but I don’t understand the suggestion that the Prince of Wales acts on, or is bound by the advice of a government of which he is not part.

    1. It’s worth recognizing that the PoW’s constitutional position isn’t that clear cut. As Brazier argued in his 1995 Public Law article, a strong case can be made that he occupies a particular position as the immediate successor to the throne, and as such, is entitled to exercised the Bagehotian rights to warn, encourage, and be consulted. The idea that this would only extend to the immediate successor also explains why other HRHs wouldn’t be involved in consenting. Given that the PoW’s interests are involved in Crown consent, it appears that the Cabinet Office has accepted Brazier’s argument, at least in part.

      I do see the importance of extending interest consent to the Duchy of Cornwall to the PoW. There have been cases in the past where the Sovereign and PoW have clashed. It could happen again, so I wouldn’t want to leave the interests of the duchy in the hands of the Sovereign alone.

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