The Crown, Consent, and Devolution

The aspect of the legislative process known usually as “Crown’s consent” is poorly understood and controversial. It involves the legislature seeking permission from (usually) the Monarch in order to legislate in a way which touch upon the interests of the Crown. Where that consent is refused, the legislation cannot be enacted. It therefore amounts to a de facto veto belonging to the Crown (or, perhaps, the Government which advises it) but which has no basis in law nor, it appears, constitutional principle. These difficulties are multiplied by the manner in which the modern devolution settlement implements the Crown consent process. This article considers the question of Crown consent in the Scottish Parliament. It begins by explaining the operation of the process at Westminster, and the unresolved questions which exist in relation thereto. It addresses the way in which the matter was dealt with in the context of the first, abortive, attempts at devolution in the 1970s, and the reasons for which a different path was taken in 1998. It then turns to the question of how the matter has operated in the era of the Scottish Parliament at Holyrood. It ends by linking the question of consent to a broader set of issues regarding the position of the Crown in Scotland post-devolution.

A Freedom of Information request to the Cabinet Office was the subject of a decision notice by the Information Commissioner in 2012.² The request related to the internal guidance on a procedure known as “Queen’s Consent” (and sometimes, by extension, “Prince’s Consent”) or, more broadly, “Crown Consent”, which takes place within the legislative process at Westminster. The process means that where Parliament proposes to legislate in a manner which affects the prerogative or the interests of a given party – usually the Monarch or the Prince of Wales – it must seek the consent of that party in order to be able to do so. Though the matter appears to have existed in something approaching plain sight,³ it had attracted little attention from constitutional scholars up until that point.⁴

The result was the publication, in 2013, of a manual produced by the Office of the Parliamentary Counsel, entitled “Queen’s or Prince’s Consent”,⁵ last updated in 2018.⁶ The manual states that consent is required in one of two sets of circumstances: where a Bill includes either “provisions affecting the prerogative” or “provisions affecting the hereditary revenues, the Duchy of Lancaster or the Duchy of Cornwall, and personal property or personal interests of the Crown.”⁷ The personal property of the Crown includes the Queen’s private estates.⁸ The reference to the personal interests of the Crown means that consent will be required for “anything that affects the Queen personally (whether as an individual or as landlord or employer)”, such as anything which affects the Royal Palaces.⁹ Prince’s consent – the consent of the Prince of Wales – is needed where the interests of the Duchy of Cornwall are affected, though only where provisions of a Bill “expressly mention the Duchy or otherwise have a special application to it” – where it is affected in the same way as other Crown land the consent of the Queen will suffice to cover the interests of the Duchy also.¹⁰

Shortly after the publication of the manual, the Political and Constitutional Reform Committee of the House of Commons reported on the consent process. It concluded that the process “is complex and arcane and its existence, and the way in which the process operates, undoubtedly do fuel speculation that the monarchy has an undue influence on the legislative process.”¹¹ Though it rejected this, on the basis that consent is (or was) given or withheld on the advice of the government – which has indeed used it in order to effectively veto legislation in the past¹² – it is not clear that this properly reflects the operation of an involved process, which may (the record shows) include several rounds of consultation between the government, the various Palaces, and the legal representatives of the Monarch and Prince of Wales.¹³ That the government might on occasion advise that consent be withheld is entirely compatible with a situation in which its advice to grant such consent is not dispositive of the matter. As the Committee noted, the government has the option of simply not seeking consent.¹⁴ While it may be the case that, as was put to the PCRC, a request for consent “carries with it by implication Ministerial advice that consent should be granted” it does not follow that the granting of such a request is a formality. The Crown appears to play a substantive, possibly decisive, role in the process.

The PCRC did not pronounce with confidence on the underlying logic of the consent process and so whether it need exist at all. Though the process “serves to remind us that Parliament has three elements” and that it “could be regarded as a matter of courtesy between the three parts of Parliament”, it noted that whether this is a “compelling justification” for retaining the process is a “matter of opinion”.¹⁵ In evidence to the Committee, however, the Clerks of the Houses suggested that “the first instance of the signification of royal consent to a public Bill was on 27 February 1728.”¹⁶ This, notably, is within memory of the last occasion on which Royal Assent was refused by the Monarch of the day.¹⁷ One reason that has been suggested for its operation is to ensure that a Bill which affects the prerogatives or interests of the Crown would not encounter difficulty in securing Royal Assent at the end of the legislative process. This was Brazier’s claim: “the procedure of obtaining the Queen’s consent”, he says, “was adopted so as to avoid resort to the refusal of royal assent to a Bill affecting royal interests. That procedure prevents parliamentary time being devoted to a measure which was then vetoed.”¹⁸ This would explain why the practice of seeking consent seems to have emerged precisely at the time when the Monarch’s power to deny Royal Assent to a Bill passed by both Commons and Lords was becoming doubtful. It was more sensible to acquire the consent at an earlier stage and avoid the waste of time, energy, and political capital associated with piloting a Bill through Parliament, to say nothing of the squabbles over whether the withholding of Assent was constitutional. Assuming that is a fair approximation of the original logic of the consent, it holds true today only if and insofar as the Crown enjoys a genuine discretion at the Assent stage. If however the Monarch ceased, in the crystallisation of a constitutional convention, to enjoy the right to veto legislation at some point between then and the present, the logic of the consent process fell away.

It was noted above that the consent of the Prince of Wales is sometimes required where the specific interests of the Prince as Duke of Cornwall are affected by a provision in a bill. But the Prince of Wales is not only the Duke of Cornwall. He is also the Prince and Steward of Scotland.¹⁹ The manual therefore notes that “Consent as Prince and Steward of Scotland has always been rare and may now have been superseded altogether” but also that it has been required “in exceptional cases for bills concerning Scottish land law and feudal reform in Scotland.”²⁰ So, for example, the Conveyancing and Feudal Reform (Scotland) Act 1970 provided that the Act would apply to “land held of the Crown and of the Prince and Steward of Scotland… in like manner as it applies to other land.” Prince’s consent was therefore sought and given to the Bill that became the 1970 Act.²¹ With the abolition of feudal tenure in Scotland, however, it is “no longer clear whether there is any remaining land or interest held by the Prince of Wales as Prince and Steward of Scotland” and so whether there is anything to which the Prince of Wales might in that capacity be called upon to consent to.²² And, anyway, “the fact that land and feudal reform has been devolved makes it even more unlikely that Prince’s consent as the Prince and Steward of Scotland will ever be relevant to future Westminster bills”.²³

The current rule regarding where Crown consent to Westminster Bills is required is as follows: “Bills affecting the prerogative (being powers exercisable by the Sovereign for the performance of constitutional duties) on the one hand, or hereditary revenues, personal property or interests of the Crown, the Duchy of Lancaster or the Duchy of Cornwall on the other, require the signification of Queen’s consent in both Houses before they are passed.”²⁴ Consent, Erskine May makes clear, “is not signified unless authority to do so has first been obtained through individual application to Her Majesty. Such applications are submitted by a Minister of the Crown, normally the responsible Secretary of State.”²⁵ This perpetuates the situation whereby the sponsor of a Private Member’s Bill is required to seek consent – if it is required – via the Government, which might, it seems, decline to make the request or do so but advise that it be refused.²⁶ It also contributes to the uncertainty, noted above, as to whether the decision to give or withhold consent lies in practice with the Monarch or with the Government of the day. Finally, we might note that the process of seeking consent has no statutory basis, but is simply “a matter of parliamentary procedure”. The effect of this fact is that “[i]f the two Houses of Parliament were minded to abolish Consent, they...