As with everything, especially in Britain, it depends on the situation. I think a situation where the Government was trying to conduct a policy that was odious and controversial would not be appropriate, as it remains Parliament’s responsibility to hold the government to account, and the electorate’s responsibility to keep Parliament responsible. But if the Government was seeking to undermine fundamental aspects of the constitution, such as ministerial responsibility to parliament, attempts to do away with elections permanently, or allowing ministers to create Acts of Parliament or Budgets without the consent of the Commons, I think she’d be justified, and supported, in vetoing or dismissing a government.
(post #153)
This would be a useful distinction only in a conversation about a totalitarian government. In a democracy the people are the ultimate source of the legitimacy of all government activity, so the distinction does not exist.
As indicated earlier, since no act of Parliament may be considered illegal Parliament can remove the obstacle to political legitimacy by passing a legally legitimate act depriving the Queen of her veto power.
These would be reasonable alternatives to my suggestion above.
I maintain it would not be illegal, for reasons given earlier.
According to what I learned in school long ago the British courts do not have authority to invalidate Acts of Parliament. If that is still so then the courts would by unilaterally assuming such authority be the ones performing a revolutionary act. It would also be revolutionary for bureaucrats to promote themselves to be arbiters of the legality of legislation. And it would obviously be revolutionary for the military or the people to take coercive measures against the government, for any reason. On the other hand acquiescence of all these parties to Parliamentary assertion de jure of what it already possessed de facto would not be revolutionary at all.
No, it would not be revolutionary to restore unimpeded authority to pass legislation by removing an obstacle which has committed a revolutionary act by violating 300 years of precedent.
Ireland I don’t know about, but the US I do, and it is absurd to compare what we are discussing to a secessionist movement and overthrow of an entire government.
As such it would be reaffirmation of the old legality, distinguished only by removing the legal fiction that the monarch has real power to veto legislation. Providing an accurate description of the real powers of the monarch would be an altogether trivial change.
(post #156)
So the courts *do *have judicial review authority? How so? By Act of Parliament, by a British version of Marbury v Madison, or what?
And if British courts do have judicial review authority would they treat the prerogatives of the unelected Queen as superior to those of the elected representatives of the people? I do not believe they would.
Once again in this thread, someone who is better-versed on British government has come to my rescue.
My point still stands, right? That if the Queen had popular support for (essentially) vetoing an Act of Parliament, it is not at all certain that her effort would be her undoing. (Your examples are far better than mine was.)
Yes, your point still stands, although I would stress the Queen halting something that was unpopular but not a matter of saving British democracy would likely be nearly as dangerous as doing it to stop something popular.
As others have pointed out above, an “Act of Parliament” has a specific legal meaning: a law passed by the Commons and the Lords, to which the Crown has assented.
A measure passed by the Commons and the Lords alone is not an Act of Parliament, and the courts can so declare. That is not judicial review in the American sense, but simply based on the requirements of “how a bill becomes law,” as set out by the common law of the constitution.
[QUOTE=Nelson Pike]
This would be a useful distinction only in a conversation about a totalitarian government. In a democracy the people are the ultimate source of the legitimacy of all government activity, so the distinction does not exist.
[/QUOTE]
Actually, that distinction does exist, and has been recognized by the Courts. For instance, in the Patriation Reference in the Supreme Court of Canada, the Court held that Prime Minister’s proposal that the federal government could unilaterally ask the British Parliament to amend Canada’s constitution, without provincial consent, would be legal, but unconstitutional
I heard them. And for the last time, as I pointed out, the Parliament can pass a law eliminating the need for royal assent. There is no doubt parliament can do this. What is in doubt are two issues:
(1) Would the courts have the authority to invalidate the law. I am not satisfied with the answer given below.
(2) Assuming they do have the authority would they actually proceed with invalidation. (in my last post I said that IMO the courts would side with the elected representatives of the people rather than with the unelected monarch.
If the courts can declare unlawful a measure passed by Parliament then they do have the power of judicial review, and there is no need to quibble about it. Has this power ever been exercised? Have the courts ever asserted that they have a right to exercise it? If the answer to both questions is “no” then I am not sure how we can be so confident that judicial review exists in the UK.
And even if it does exist Parliament could stipulate that the courts shall not have the power to judge the legality of the hypothetical act we are discussing. Lest you think this is too extreme or unrealistic see III 2.2 of the US constitution, which gives congress ad hoc power to deny the courts right of review on appeal.
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?”.
“Legal but unconstitutional” ?!?!
Would it be too much trouble for you to provide a quote from the cite it spelling out?
In the US something which is unconstitutional cannot be legal.
And the two concepts being discussed were legality and democratically mandated political legitimacy; the latter is not a synonym for “constitutional”.
You’re still forgetting the fact that a law passed by the Commons and Lords, but not the Crown, is no law. The courts would declare it as such. Unless we’re in the realm of declaring an outright republic, then all’s to play for, and what the courts say will count for nothing. But legally, it’s not law.
Oh, judicial law exists here and has been growing considerably in the past few decades. They steer well clear of ruling on the constitutionality of primary legislation (as that’s a no-no, although they have ruled in the past when a law has violated EU law, see: Factortame), but they rule on secondary legislation all the time, and can give rulings interpreting primary legislation where Parliament’s intent is unclear.
Except the Commons and Lords together, but without the Crown, could not do such a thing: it would need Royal Assent before the courts could pay attention to it.
The courts can’t annul an Act of Parliament, but what they certainly can do is recognise, and point out, that a text or document is not, and never has been, an Act of Parliament, and that they can and must refuse to give it the effect they would give it if it were an Act of Parliament.
A resolution passed by both Houses declaring that the assent of the crown was not necessary to legislation would not be an Act of Parliament, and for the courts to give effect to it would be a revolutionary act. It might be a politically legitimate act, and it might be an effective revolution, but a revolution it would be.
I’m using my phone right now so can’t provide a direct quote, but the wiki article I linked to provides a good summary.
The SCC was asked two questions:
1 Was the federal proposal for unilateral constitutional amendments authorised by the text of Canadian constitutional law?
- If so, was the proposal nonetheless contrary to constitutional convention and thus unconstitutional?
The SCC answered the first question “Yes”. The federal government had the legal authority to put forward unilateral constitutional amendments.
The SCC then answered the second question “Yes” as well. Even though the federal government had the legal authority to make unilateral constitutional amendments, there was an unwritten constitutional convention that substantial provincial consent was required. The federal proposal for unilateral constitutional amendments was therefore unconstitutional.
Quite. But we are not talking about the US constitutional system, are we. We’re talking about the Westminster system. US constitutional principles are irrelevant to this discussion, and it is a doctrinal mistake to try to rely upon them.
It is when you’re talking about constitutional conventions in the Westminster system. Constitutional conventions are the way popular political legitimacy is conferred on such undemocratic institutions as a hereditary monarchy.
I think this is the key, if the monarch wanted to veto something then parliament could boot them out.
Yes. But it would be a revolutionary act. And indeed it was recognised as a revolutionary act on the two occasion on which it has happened. (The Commonwealth, and the Glorious Revolution. Come to think of it, there’s a bit of a clue in that second name.)
I am not forgetting anything. This line of argument has been addressed by me but not answered by others (as of your post #170- I have not yet studied the other posts from #169 and later).
There is no reason to get bogged down in a sideshow over the word “revolutionary”.
IMO the word denotes change more drastic than Parliament merely making explicit the long-held implicit right to automatic royal assent to its legislation.
If you want to call that revolutionary fine, go ahead.
What would happen if there was a controversy over whether or not Royal Assent was actually given? E.g. maybe a case comes before the courts where one side claims that the Queen did consent, and the other side says that the Queen clearly did not consent. Wouldn’t the court need to examine the case and issue a ruling as to whether or not there was consent?
Perhaps someone forgot to record the Queen’s responses in the leger and several MP’s claim that they heard the Queen say, “yes”, but others claim that she was stone-cold silent the entire time. Or maybe the record says that the Queen said “Umm, maybe, I think this is a good idea, in theory, but, hmm, we should probably enact this.” and one side says that constitutes implied consent, and the other side says that the Queen must state certain “magic words” of consent for it to be effective.
Let’s drag this back to reality shall we? The Queen is never going to refuse to assent to some run of the mill bit of routine legislation. Ain’t gonna happen.
If the Queen refuses assent to a bill, then it means we are already through the looking glass. Strange days are upon us. The proposed legislation in question will be pretty novel and remarkable. Of course, if we are just entering the world of craziness, then the resolution is pretty unremarkable too. The Prime Minister would resign, having lost the confidence of the monarch, and she would dissolve Parliament (dunno what extra hoops the fixed term parliaments act introduces).
There would then be another election, at which all interest would focus on the rejected legislation. If the same government is returned, then they may reintroduce their legislation and this time the Queen would assent. Other constitutional developments may arise. If a different government is returned, then the Queen and people and Parliament celebrate the return of the status quo ante with parades and street parties and jelly and ice cream.
The royal assent is a bid deal - it is the last possible fail safe against a tyrannous government, when the Queen can and should go over the heads of Parliament, look the people in the eye, and say ‘are you absolutely sure you want these clowns to do this, and I’m not going to ask you a second time?’
Sandwich
(rare English beef with Norfolk mustard today)
I have not forgotten anything and I have addressed this as plainly as I know how.
Primary legislation is the only kind of legislation pertinent to this argument. If the UK courts cannot rule on the constitutionality of primary legislation then they do not have the power of judicial review, and would not have that power over a specific act doing away with royal assent.
If the courts were not to “pay attention” to primary legislation it would have the same effect as ruling against its constitutionality, and would therefore be a case of judicial review after all. You have tied yourself in a knot and I do not intend to discuss it further with you unless you untie it.
This is an example of good old fashioned Anglo-Saxon legalese taken to a truly amazing extreme. Its audacity is breathtaking. Something can at the same time be both A and the polar opposite logical negation of A! And that is without even considering this unwritten rabbit-out-of-the-hat entity called a constitutional “convention” carries more weight than the plain-English literal constitutional text.
I thought the Westminster system applied only to the combination of executive and legislative functions of government entirely within the legislature, with a legislator being the chief executive. IOW it does not apply to the judiciary, since the modern Canadian judiciary possesses judicial review authority certainly lacking historically in the UK, where the Westminster system was invented. Whether or not the present UK judiciary has even a theoretical right to judicial review is something no one here has resolved.
But the UK does not have a written constitution, so adopting a term like “convention” is the only way they have to approach the subject. Since Canada does have a written constitution, I do not see why resort to “convention” should be needed or even allowed
Thank you for the explanation. My mind was a little exploded by “legal but not constitutional”. It makes sense now.
No need to get so aggressive. A move by the Commons and Lords alone is not an Act of Parliament. It remains nothing more than a Bill. There’s nothing for the courts to rule on, as it has no force of law. That’s it, really.
If it came to the point where the relationship between Crown, Lords and Commons broke down to that level, the monarchy would have almost certainly have been dissolved by fact before such a move as a Bill got on the Table.