All the monarch’s decisions have force through Her signature or Her seal. Her vocal command is not sufficient. They even have reams of documents which merely command the Lord Chancellor to do something with the Great Seal in the Queen’s name.
So the courts would simply ask 'is there a signature or seal? If not, then it was not given Assent by the Queen.
If someone claimed that the seal on such and such law was actually a forgery (looked like the Queen’s seal, but really wasn’t), would a court have jurisdiction to summon a Questioned Document Examiner, collect witnesses’ testimony, etc., and make a ruling as to whether or not said seal is really and truly a valid Royal seal? Perhaps a renegade MP from the Opposition somehow grabbed the seal when nobody was looking, stamped some of his own papers with it, returned the seal, and then went and tried to get those documents recognized as valid.
I recognize that this is unlikely to actually happen. I’m curious as to whether or not the courts would even have jurisdiction to consider such a thing, or whether “It’s an older seal, sir, but it checks out, I was about to clear them.” is unquestionable.
Yes, you are right that this is purely a thought exercise, entertaining nonetheless 
I’ve actually seen the Seal being used, funnily enough. It used to be created using wax but owing to durability concerns they now use cellulose acetate…washing-up bowl plastic to you and me.
Anyway, whenever such a thing is done, they have witnesses, make public proclamations, publish in the state gazette, and send paper instructions to people telling them to prepare the formal document which would have legal force. So there’d be an ample paper trail.
I suppose if even if after that there was doubt, they’d simply ask the Queen if she remembered signing it. If yes, that’s probably the end of the question!
Your scenario involves (a) the monarch refusing, against ministerial advice, to assent to a bill, and (b) the Lords and Commons responding by purporting to abolish, other than through an Act of Parliament, the requirement for Royal Assent. (Note: You say that parliament is “merely making explicit the long-held implicit right to automatic royal assent to its legislation”, but it’s not. It’s asserting not that it has the right to royal assent, but that legislation does not require royal assent.
(A) would be unconstitutional. (B) would be both unconstititional and illegal. Where fundamental change in the constitutional structures of any state is effected by unconstitutional and illegal acts, that’s a revolution. No question. What else could “revolution” possibly mean? What more could it require?
Listen, since way back in post #139 I have been posing a hypothetical bill in which Parliament “stipulate(d) that assent was no longer required” as an answer to a hypothetical monarch’s refusal to give assent. Call it Article 1. I should not have to flesh out the details by adding further hypothetical articles, but I will add two anyway:
Article 2: “This bill and every future bill shall be considered an Act of Parliament solely upon passage by Parliament.” For any real sticklers here we can add something like: “A passed bill shall be considered primary legislation carrying full force of law.”
Article 3: Consisting of explicit instructions to the judiciary to carry out its duties in conformance with Articles 1 and 2 above.
Now, Parliament has done its share of the work. It is up to the judges to force a real crisis with such predicaments as budgets hanging fire in the unhappy spirit of the recent USA. What are they going to do?
How are they going to do any dissolving if they cannot legislate? Just send in the troops?
When this Bill is produced in court, the judges are going to notice that it’s not an Act of Parliament (because it lacks the Royal Assent) and doesn’t have the force of law.
They are going to either (a) point this out, and refuse to give effect to the Bill, or (b) ignore this, and give effect to it as if it were a law. If they do (b), and that sticks, that’s a fundamental change in the British constitution, effected illegally. The judges, who have no legal or democratic mandate to do so, will have conferred on the two houses of parliament a power which, as of today, they do not enjoy - viz., the power to make law without securing the Royal Assent.
(I note in passing that this doesn’t just diminish the powers of the monarch; it diminishes the powers of the executive, since they will no longer be able to advise the monarch to withhold assent from a Bill. Plus, the implication is that Parliament can unilaterally strip from the monarch other prerogative powers which at present are exercised on the advice of the executive. So it is not just a superficial change in the “ornamental” aspects of the constitution.)
Or threaten to. In the scenario we are imagining here, from the day the monarch refused to assent to whatever the first Bill was, this could only end in one of four ways - the monarch backs down and signs the first Bill; the monarch abdicates and the new monarch signs the Bill; the monarch is deposed and the new monarch signs the Bill; the monarch is deposed, the monarchy is abolished and new constitutional arrangements for legislation are put in place - perhaps there is a President whose assent is required, perhaps no assent is required.
The first and second of these options can be accomplished legally within the present British Constitution. The third and fourth cannot; they would be revolutionary. They would also be unconstitutional, but since the constitution would already be in shreds (from the moment the monarch refused to assent to the first Bill) that might not bother people too much in the circumstances.
I agree with (a) but not (b). See my post #185.
OK, I could have expressed that better. How about: By doing away with the requirement for royal assent Parliament is merely making explicit the long-held implicit right to pass legislation without royal interference
(A) Is the precipitating event for all that follows: for a constitutional crisis of the highest order, unprecedented in centuries. It is an attempted revolution on the part of the royalty. (B) The representatives of popular vote are entitled to defend themselves against revolution. Any such self-defense should be considered not merely constitutional and legal, but constitutional and legal requirements.
Political revolution requires radical alteration of a political power structure. The English Civil War and the Glorious Revolution together affected a radical change in that the monarch was reduced to an unambiguous second place role in the power structure, whereas in previous centuries his role had been primary. IMO taking away a right (to veto legislation by witholding assent) not exercised for centuries would be no real change in the politcal power structure.
No, you’ve not been, actually. You’ve been proposing a bill passed by the Commons and Lords. That is not Parliament.
Parliament is composed of Queen, Lords and Commons. Anything proposed by the two houses without the Queen’s participation has not been passed by Parliament.
I’m sorry that you find the principles of the Westminster system so foreign. However, the more you talk in this strain, the more you show that you really don’t understand the Westminster system.
The ruling by the Supreme Court was focused entirely on the powers of the federal Parliament and Prime Minister, which are based on the Westminster system.
The distinction between a legal power, such as the Queen’s power to refuse assent to a bill, and an unwritten constitutional convention that restricts that legal power, requiring her to give that assent, is such a basic, fundamental principle of the Westminster system that if you refuse to accept that, there really is not much point discussing the matter with you.
I’m sorry our Constitution does not live up to your standards. :rolleyes:
Hey UDS- I have enough work around here without having to deal with two replies for each one of my posts, so I will ignore your reply to my post# 185 and await Mr. Capell’s reply, since he was the original addressee.
I have seen your post #185. What you propose is the abolition of the requirement for royal assent by a measure which has passed through both houses of Parliament but which has not itself received the royal assent and which is not, therefore, an Act of Parliament.
They are doing a bit more than that. First, they are asserting that they have the unilateral right to strip the crown of prerogative powers through measures to which the assent of the crown is not obtained. They certainly do not have that right under the British constitution as it stands. Secondly, by stripping the crown of legal powers they strip the executive of real, practical powers (since the prerogative powers are exercised on the advice of the executive). Thus there’s a real shift in the balance of power.
Yes, (a) is the precipitating event. But that doesn’t make (b) inherently constitutional. (B) is illegal, after all, and since the rule of law - the notion that the state and its agencies must respect the law - is firmly embedded in the British Constitution, no action by the two houses of Parliament which is unlawful can possibly be constitutional.
You mistake me. I’m not saying that it would be politically revolutionary, but that it would be constitutionally revolutionary. The two houses of Parliament would be asserting and taking, by illegal means, an important power which under the current British constitution they do not have - viz., the power unilaterally to strip the crown of its prerogatives (and, therefore, the executive of its power to advise on the exercise of crown prerogatives). The two houses would be taking a power which the constitution does not give them, and they would be doing so by means which under the current constitution are illegal and invalid. However you look at it, that’s a constitutional revolution. It might be entirely politically justified; many revolutions are. That doesn’t mean that they are not revolutions.
They will ignore it. It is null. A Bill which declares Royal Assent no longer necessary still needs Royal Assent to make it so.
By refusing to co-operate with the monarch - MPs would refuse to work with her, refuse to form a government under her, refuse to pass budgets, refuse to legislate, until she abdicated.
Or there would be a revolution where the Army refused to acknowledge her orders and depose her. Then we’d have either a new monarch who enjoys Parliament’s confidence, or a new, republican constitution, which the courts would then enforce.
There’s no way, basically, that Royal Assent could be done away with in a legal/judicial way. It would need a major suspension of the constitution.
[QUOTE=Malden Capell]
There’s no way, basically, that Royal Assent could be done away with in a legal/judicial way. It would need a major suspension of the constitution.
[/QUOTE]
I think you mean by the Lords and Commons alone, right?
It could be done away with by a bill to which the monarch assents, just like her power to dissolve Parliament has been taken away, by a bill to which she assented.
Ah, yes, slightly important detail there that I missed out!
You’re welcome. Pleased to have been of service.
What does this mean? For centuries royalty was absolute. Then it was gradually reined in over the course of several more centuries until finally, by around 1800, it lost all vestige of real power. I suspect this process took place outside the realm of ordinary, day to day accretion of legal precedent that common law consists of. I doubt it is proper to appeal to common law as conferring a hitherto unexercised right of judicial review of legislation, and I doubt common law has any bearing on the question “Who rules?”.
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Much of the UK Constitution is found in the common law, as compared to statute law. For example, the Crown, the Commons, the Lords, and the Parliament itself were not created by statute; they all owe their existence to the common law. Parliament can certainly amend that common law dealing with the fundamental institutions of government, and has done so, many times. But the basic existence of Parliament and its components are found in the common law, not in statute; that’s what’s meant by saying that Britain has an unwritten constitution.
Similarly with the Royal Prerogative: it’s not set out in any statute. The Royal Prerogative is the residue of the Crown’s once-broad powers. Its origins are also found in the common law, relating to the monarch.
And, these are legal powers, and like other legal powers, can be the subject of court decisions. The courts have the power to state the limits of the Royal Prerogative, and whether it’s been altered by developments in the common law, or by statutes passed by Parliament.
The courts also have powers to determine if a statute has been validly passed; that’s called the “manner and form” principle. If Parliament and the “law and customs of Parliament” say that a certain process must be followed for a bill to become law, then the courts have the legal authority to determine if that process has in fact been followed. That’s not a question of judicial review, but rather a consideration of a fundamental question: is the document before us an Act of Parliament? The courts need to be able to answer that question, because they need to know if they are bound by the document.
To determine that, the courts consider the manner and form of how the document was created; and that includes whether it’s been passed by all three steps of the legislative process: passage by the Commons; passage by the Lords; Royal Assent by the Crown.
The Parliament Acts of course provide an alternative “manner and form” to legislation: if the steps followed in the Parliament Acts are followed by the Commons, then it is not necessary to have the Lords concur in the bill. However, even under the Parliament Acts, the Crown’s assent is still needed.
The issue has never come up, but if a case arose where a bill was passed by Commons and the Crown alone, purporting to act under the Parliament Acts, but someone challenged whether the bill fit within the scope of the Acts, that would be a legal issue for the courts: does this bill meet the manner and form requirements for the assent of the Lords to be dispensed with? That is a legal question that the courts could determine, applying the law and customs of Parliament as amended by the Parliament Acts.
Actually, it has come up. In 2005 the Countryside Alliance attempted to declare the Hunting Act illegal by invalidating the 1949 Parliament Act - as the 1949 Act was legislated using the 1911 Parliament Act. The High Court declared the 1949 Act valid.
Thanks - wasn’t aware of that. Useful precedent, then to show that the courts will consider manner and form for the passage of legislation.
The decision of the House of Lords, at that time Britain’s highest court, is found at: Jackson and others (Appellants v. Her Majesty’s Attorney General (Respondent), 2005 UKHL 56.
See for example the decision of Lord Bingham:
[QUOTE=Lord Bingham]
**27. **Like the Court of Appeal (see paras 11-13 of its judgment), I feel some sense of strangeness at the exercise which the courts have (with the acquiescence of the Attorney General) been invited to undertake in these proceedings. The authority of Pickin v British Railways Board [1974] AC 765 is unquestioned, and it was there very clearly decided that “the courts in this country have no power to declare enacted law to be invalid” (per Lord Simon of Glaisdale at p 798). I am, however, persuaded that the present proceedings are legitimate, for two reasons. First, in Pickin, unlike the present case, it was sought to investigate the internal workings and procedures of Parliament to demonstrate that it had been misled and so had proceeded on a false basis. This was held to be illegitimate: see Lord Reid at p 787, Lord Morris of Borth-y-Gest at p 790, Lord Wilberforce at p 796, Lord Simon of Glaisdale at p 800 and Lord Cross of Chelsea at p 802. Lord Reid quoted with approval a passage of Lord Campbell’s opinion in Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 Cl & F 710, 725, where he said:
“All that a Court of Justice can do is to look to the Parliamentary roll: if from that it should appear that a bill has passed both Houses and received the Royal assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament during its various stages through both Houses”.
Here, the court looks to the parliamentary roll and sees bills (the 1949 Act, and then the 2004 Act) which have not passed both Houses. The issue concerns no question of parliamentary procedure such as would, and could only, be the subject of parliamentary inquiry, but a question whether, in Lord Simon’s language, these Acts are “enacted law”. My second reason is more practical. The appellants have raised a question of law which cannot, as such, be resolved by Parliament. But it would not be satisfactory, or consistent with the rule of law, if it could not be resolved at all. So it seems to me necessary that the courts should resolve it, and that to do so involves no breach of constitutional propriety.
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And Lord Nichols:
[QUOTE=Lord Nichols]
51. In the present case the claimants do not dispute this constitutional principle. Nor do they seek to gainsay the conclusiveness of the certificate endorsed by the Speaker on the Bill for the Parliament Act 1949 as required by section 2(2) of the 1911 Act. Their challenge to the lawfulness of the 1949 Act is founded on a different and prior ground: the proper interpretation of section 2(1) of the 1911 Act. On this issue the court’s jurisdiction cannot be doubted. This question of statutory interpretation is properly cognisable by a court of law even though it relates to the legislative process. Statutes create law. The proper interpretation of a statute is a matter for the courts, not Parliament. This principle is as fundamental in this country’s constitution as the principle that Parliament has exclusive cognisance (jurisdiction) over its own affairs.
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and Lord Styne:
[QUOTE=Lord Styne]
VII. What is Parliament?
81. The word Parliament involves both static and dynamic concepts. The static concept refers to the constituent elements which make up Parliament: the House of Commons, the House of Lords, and the Monarch. The dynamic concept involves the constituent elements functioning together as a law making body. The inquiry is: has Parliament spoken? The law and custom of Parliament regulates what the constituent elements must do to legislate: all three must signify consent to the measure. But, apart from the traditional method of law making, Parliament acting as ordinarily constituted may functionally redistribute legislative power in different ways. For example, Parliament could for specific purposes provide for a two-thirds majority in the House of Commons and the House of Lords. This would involve a redefinition of Parliament for a specific purpose. Such redefinition could not be disregarded. Owen Dixon neatly summarised this idea in 1935:
". . . The very power of constitutional alteration cannot be exercised except in the form and manner which the law for the time being prescribes. Unless the Legislature observes that manner and form, its attempt to alter its constitution is void. It may amend or abrogate for the future the law which prescribes that form or that manner. But, in doing so, it must comply with its very requirements."
See: The Law and the Constitution, 51 LQR 590, 601. This formulation can be traced to the majority judgment in Attorney General for New South Wales v Trethowan (1931) 44 CLR 394, and in particular to the judgment of Dixon J at 424. The Parliament of New South Wales had amended the Constitution to require that any Bill to abolish the Upper House had to be approved at a referendum before being presented for Royal Assent, and that any Bill to remove this requirement also had to be submitted to a referendum. A non-conforming statute was held to be void.
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So here you go, Nelson Pike. You’ve been saying that the courts can’t review whether a bill has been properly passed and become law, and have asked for a citation to support the contrary position.
Well, the Law Lords disagree with you. They did review a document to see if it met the necessary assents to qualify as an Act of Parliament. They also stated that to reduce the assents required, the existing formula must be used.
The net result is that if it is desired to remove the Crown’s power to give assent to legislation, a bill must be passed by the Commons, the Lords, and the Crown. (Unless, of course, the Lords oppose and the government follows the procedure set out in the Parliament Acts to dispense with the need for the Lords to assent. However, the Parliament Acts do not provide any way for a bill to be enacted without Royal Assent.)
No, in your scenario, Parliament has not acted. The Lords and the Commons have acted. That is not Parliament.
“Parliament” as you know perfectly well is the universal every-day term for the elected legislature alone, and not including the monarch. Please forgive me if I continue to use the word in that sense.