Royal Assent

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Contents 1 United Kingdom 1.1 Historical development 1.1.1 Queen's Consent 1.2 Ceremony 1.3 Scotland 2 Commonwealth Realms 2.1 Historical development 2.2 Ceremony 2.2.1 New Zealand 2.2.2 British Crown Dependencies 2.2.2.1 Channel Islands 2.2.2.2 Isle of Man 2.3 British overseas territories 2.3.1 Former British colonies and possessions 2.3.1.1 Hong Kong 3 Other countries 4 Notes 5 References

The granting of Royal Assent is the formal method by which a constitutional monarch completes the legislative process of lawmaking by formally assenting to an Act of Parliament. While the power to withhold Royal Assent was once exercised often, it is almost never exercised under modern constitutional conventions. The power remains as one of the reserve powers of the monarch.

The granting of the Royal Assent is sometimes associated with elaborate ceremonies. In the United Kingdom, for instance, the Sovereign appoints Lords Commissioners who in turn announce that Royal Assent has been granted at a ceremony at the Palace of Westminster, Buckingham Palace or another royal residence. In other nations, such as Australia and Canada, the Governor-General merely signs the bill. In each case, the Parliament must be apprised of the granting of Assent. Two methods are available: the Lords Commissioners or the Sovereign's representatives may grant Assent in the presence of both Houses of Parliament; alternatively, each House may be notified separately, usually by the presiding officer.

[edit] United Kingdom

In the United Kingdom of Great Britain and Northern Ireland, the Royal Assent is a constitutional convention whereby assent to legislation is granted by the Sovereign (currently Elizabeth II). Once a bill is presented to the Sovereign or the Sovereign's representative, he or she has three formal options. Firstly, the Sovereign may grant the Royal Assent, thereby making the bill an Act of Parliament. Secondly, the Sovereign may withhold the Royal Assent, thereby vetoing the bill. Finally, the Sovereign may reserve the Royal Assent, that is to say, defer a decision on the bill until a later time.

Under modern constitutional conventions, the Sovereign acts on the advice of his or her ministers. Since these ministers most often maintain the support of Parliament and are the ones who obtain the passage of bills, it is highly improbable that they would advise the Sovereign to withhold Assent. (An exception is sometimes stated to be if bills are not passed in "good faith," though it is difficult to imagine what this would constitute.) Hence, in modern practice, the Royal Assent is always granted; a refusal to do so would only be appropriate in an emergency requiring the use of the monarch's reserve powers.

[edit] Historical development

Originally, legislative power was held by the Sovereign, acting on the advice of the Curia Regis, or Royal Council, in which important magnates and clerics participated, and which evolved into Parliament. The so-called "Model Parliament" was called, irregularly and without any royal authorisation, by Simon de Montfort, 6th Earl of Leicester in 1265; it included bishops, abbots, earls, barons, two knights from each shire and two burgesses from each borough. The body eventually came to be divided into two branches: bishops, abbots, earls and barons formed the House of Lords, and the shire and borough representatives formed the House of Commons. The King would seek the advice and consent of both Houses before making any law. Under Henry VI in the fifteenth century, it became regular practice for the two Houses to originate legislation in the form of bills, which did not become law unless the Sovereign's Assent was obtained, as the Sovereign was, and still remains, the enactor of laws. Hence, all Acts include the clause: "Be it enacted by the Queen's (King's) most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows...". The Parliament Act gives a second potential preamble if the House of Lords is excluded from the process.

The power of Parliament to pass bills was often thwarted by monarchs. Charles I dissolved Parliament in 1629 after it passed bills seeking to restrict, and motions critical of, his arbitrary exercise of power; during the "Eleven Years of Tyranny" that followed, he performed legally dubious actions such as legislating raising taxes without Parliament's approval. After the English Civil War, it was accepted that Parliament should be summoned to meet regularly, but it was still commonplace for monarchs to refuse the Royal Assent to bills. For instance, in 1678, Charles II withheld his Assent from a bill "for preserving the Peace of the Kingdom by raising the Militia, and continuing them in Duty for Two and Forty Days," suggesting that he—not Parliament—should control the militia. The last Stuart monarch, Anne, similarly withheld, on the advice of her ministers, her Assent from a bill "for the settling of Militia in Scotland" on March 11, 1708, but no monarch since has withheld the Royal Assent on a bill passed by the British Parliament.

During the rule of the Hanoverian dynasty, which succeeded Stuarts, power was gradually transferred from the Sovereign to Parliament and the Government. For instance, the first Hanoverian monarch, George I, who spoke no English and preferred to concentrate on his German possessions, relied on his ministers more than previous monarchs. Later Hanoverian monarchs attempted to restore royal control over legislation. George III and George IV both openly opposed Catholic Emancipation (the attempt to abolish religious restrictions that prevented Roman Catholics from serving in certain public posts). Both asserted that to grant Assent to a Catholic Emancipation bill would be to violate the coronation oath, which required the Sovereign to preserve the established Church of England. George IV, however, reluctantly granted his Assent upon the advice of his ministers.

Thus, as the concept of ministerial responsibility has evolved, the power to withhold the Royal Assent has fallen into disuse, both in the United Kingdom and in the Commonwealth Realms. As noted above, Assent is, in practice, always granted.

[edit] Queen's Consent

There is a situation, however, in which a more direct monarchical assent is required for a bill. This is not Royal Assent, but is termed Queen's Consent. In order for any bill affecting, directly or by implication, the prerogative, hereditary revenues (ultimus haeres, treasure trove, bona vacantia) or the personal property or interests of the Crown to be heard in Parliament, the monarch must first consent to its hearing. On rare occasions, such as for the House of Lords Act 1999, the consent of the Prince of Wales, as Prince and Steward of Scotland, or as Duke of Cornwall, must also be obtained where a Bill affects his interests (this is known as Prince's Consent).

In 1999, Queen Elizabeth II, acting on the advice of the government, refused to signify her consent to the Military Action Against Iraq (Parliamentary Approval) Bill, which sought to transfer from the monarch to Parliament the power to authorize military strikes against Iraq. Due to the Crown's refusal to consent to the bill's hearing, it was automatically dropped. However, because the Bill had been introduced under the Ten Minute Rule, it never stood any chance of being fully debated by Parliament, and it does not represent a test of what would happen if a future government introduced other legislation affecting the reserve powers of the Crown.

[edit] Ceremony

In the United Kingdom, a bill is presented for Royal Assent after having been passed by both the House of Commons and the House of Lords. Alternatively, under the Parliament Acts of 1911 and 1949, the House of Commons may under certain circumstances direct that a bill be presented for Assent despite non-passage in the House of Lords. In either case, the Sovereign does not actually analyze the bill and make a decision on whether or not to grant Assent. In practice, the granting of Assent is purely ceremonial. Officially, Assent is granted by the Sovereign or by Lords Commissioners authorised to act by letters patent. It may be granted in Parliament or outside Parliament; in the latter case, each House must be separately notified before the bill takes effect.

The Clerk of the Parliaments, an official of the House of Lords, traditionally states an Anglo-Norman formula indicating the Sovereign's decision. The granting of the Royal Assent to a supply bill is indicated with the words La Reyne remercie ses bons sujets, accepte leur benevolence, et ainsi le veult (the Queen thanks her good subjects, accepts their benevolence, and wills it so). For other public or private bills, the formula is simply La Reyne le veult (the Queen wills it). For personal bills, the phrase was Soit fait comme il est désiré (so be it as it is desired). The appropriate formula for withholding Assent is the euphemistic La Reyne s'avisera (the Queen will consider it). When the Sovereign is male, Le Roy (the King) is substituted for La Reyne (the Queen). The spelling of the words in the formulæ has varied over the years; for example, in former times, s'uvisera and s'advisera were used instead of s'avisera, and Raine was used instead of Reyne.

Formerly, the Sovereign always granted his or her Assent in person. The Sovereign, wearing the Imperial State Crown, would be seated on the Throne in the Lords Chamber, surrounded by heralds and members of the Royal Court (nowadays, the scene is repeated only at the annual State Opening of Parliament). The Commons, led by their Speaker, would listen from the Bar of the Lords, just outside the Chamber. The Clerk of the Parliaments presented the bills awaiting Assent to the Sovereign, save that supply bills were traditionally brought up by the Speaker. The Clerk of the Crown, standing on the Sovereign's right, then read aloud the titles of the bills (in earlier times, the entire text of the bills). The Clerk of the Parliaments, standing on the Sovereign's left, responded by stating the appropriate Norman French formula.

A new device for granting Assent was created during the reign of Henry VIII. In 1542, Henry decided to execute his fifth wife, Catherine Howard, whom he accused of committing adultery; the execution was to be authorised not after a trial but by a bill of attainder, to which he would have to personally assent after listening to the entire text. Henry decided that "the repetition of so grievous a Story and the recital of so infamous a crime" in his presence "might reopen a Wound already closing in the Royal Bosom." Therefore, Parliament inserted a clause into the Act of Attainder, providing that Assent granted by Commissioners "is and ever was and ever shall be, as good" as Assent granted by the Sovereign personally. The procedure was used only five times during the sixteenth century, but more often during the seventeenth and eighteenth centuries, especially when George III's health began to deteriorate. Victoria became the last Sovereign to personally grant Assent in 1854. When granting Assent by Commission, the Sovereign authorises three or more (normally five) Lords who are Privy Counsellors to grant Assent in his or her name. The Lords Commissioners, as the Sovereign's representatives are known, wear scarlet Parliamentary Robes and sit on a bench between the Throne and the Woolsack, with the Speaker and the Commons attending at the Bar of the Lords. The Lords Reading Clerk read the Commission aloud; the senior Commissioner (usually the Lord Chancellor), then states, "My Lords, in obedience to Her Majesty's Commands, and by virtue of the Commission which has been now read, We do declare and notify to you, the Lords Spiritual and Temporal and Commons in Parliament assembled, that Her Majesty has given Her Royal Assent to the several Acts in the Commission mentioned." Thereafter, the Clerk of the Crown states the title, with the Clerk of the Parliaments responding with the appropriate Norman French formula.

During the 1960s, the ceremony of assenting by Commission was discontinued. In 1960, the Gentleman Usher of the Black Rod arrived to summon the House of Commons during a heated debate; several members protested against the disruption by refusing to attend the ceremony. The debacle was repeated in 1965; this time, when the Speaker left the chair to go to the House of Lords, some members continued to make speeches. As a result, the Royal Assent Act 1967 was passed, creating an additional form for the granting of the Royal Assent.

Thus, the granting of Assent by the monarch in person, or Commission is still possible, but this third form is used on a day-to-day basis.

Under the Royal Assent Act 1967, Royal Assent can be granted by the Sovereign in writing, by means of letters patent, that are presented to the presiding officer of each House of Parliament. Then, the presiding officer makes a formal, but simple statement to the House, acquainting each House that the Royal Assent has been granted to the acts mentioned. Thus, unlike the granting of Royal Assent by the Sovereign in person or by Royal Commissioners, the method created by the Royal Assent Act 1967 does not require both Houses to meet jointly for the purpose of receiving the notice of Royal Assent. The standard text of the Letters Patent is set out in The Crown Office (Forms and Proclamations Rules) Order 1992 [1], with minor amendments in 2000.

No law has been assented to by the monarch in person since the reign of Queen Victoria. However, formally, this still remains the standard method, a fact that is revealed by the wording of the Letters Patent for the appointment of the Royal Commissioners, and by the wording of the Letters Patent for the granting of the Royal Assent in writing under the 1967 Act. ("... And forasmuch as We cannot at this time be present in the Higher House of Our said Parliament being the accustomed place for giving Our Royal Assent...").

The traditional ceremony whereby the Lords Commissioners declare Assent in the presence of both Houses is still followed once at the end of each Parliamentary session. The procedure adopted in 1967 is followed in most cases.

When the Act is assented by the Sovereign in person, or by Royal Commissioners empowered by him, Royal Assent is considered given at the moment when the assent is declared in the presence of both Houses jointly assembled. When the procedure created by the Royal Assent Act, 1967 is followed, Assent is considered granted after the presiding officers of both Houses, having received the Letters Patent from the monarch signifying the Assent, notify their respective House of the grant of Royal Assent. Thus, if each presiding officer makes the announcement at a different time (for instance because one House is not sitting on a certain date), assent is regarded as granted when the second announcement is made. This is relevant because, under British Law, unless there is any provision to the contrary, an Act takes effect on the date in which it receives Royal Assent, and that date is not regarded as being the date when the Letters Patent are signed, or when they are delivered to the presiding officers of each House, but the date in which both Houses have been formally acquainted of the conferral of Assent to the Act.

Independently of the method used to signify the Royal Assent, it is always the responsibility of the Clerk of the Parliaments, once it has been duly notified to both Houses, not only to endorse the Act with the formal Norman French formula, but also to certify that the Assent has been granted, signing one authentic copy of the Bill that has just become an Act, and inserting in this copy, between the text of the enacting clause and the first section of the Act, the date when the Royal Assent was notified to both Houses.

When the Act is published, the signature of the clerk is omitted, as is the Norman French formula (should the endorsement have been made in writing), but the date inserted by him as being the date when Royal Assent notified is printed in brackets.

[edit] Scotland

Royal Assent is the final stage in the legislative process for Acts of the Scottish Parliament. The process is governed by sections 28, 32 and 33 of the Scotland Act 1998. After a Bill has been passed, the Presiding Officer submits it to Her Majesty for Royal Assent, but only after a four-week period during which the Advocate General for Scotland, the Lord Advocate or the Attorney General may refer the Bill to the Judicial Committee of the Privy Council for review of its legality.

Royal Assent is signified by Letters Patent under the Great Seal of Scotland, the form of which has been specified in The Scottish Parliament (Letters Patent and Proclamations) Order 1999. Notice is published in the London, Edinburgh and Belfast Gazettes.

[edit] Commonwealth Realms

In Commonwealth Realms (besides the UK), the Royal Assent is granted or withheld by the Governor-General, the representative of the Sovereign. Similarly, in these Realms' states, provinces or territories, Assent is granted or withheld by the Governor or Lieutenant Governor.

A Governor or Lieutenant Governor of a subnational entity may defer to the Governor-General (who may in turn defer to the Sovereign).

The Sovereign has the power to disallow a bill (usually within a specific time limit) that has received the Royal Assent from one of his or her representatives.

As in the United Kingdom, Royal Assent is by convention granted on the advice of the government's ministers, and is therefore never withheld. In some cases, when a royal visit to a Commonwealth Realm is pending, Assent may be reserved so that the Sovereign may grant it in person.

[edit] Historical development

While the Royal Assent has not been withheld in Great Britain (and in the United Kingdom) since 1708, it has often been withheld in British colonies and former colonies by Governors acting on royal instructions. In the United States Declaration of Independence, colonists complained that George III "has refused his Assent to Laws, the most wholesome and necessary for the public good [and] has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them." Even after colonies such as Canada, Australia, New Zealand, South Africa and Newfoundland were granted responsible government, the British Government continued to advise Governors-General on the granting of Assent. Assent was sometimes reserved in order to allow the British Government to examine a bill before advising the Governor-General.

Since the 1920s, Governors-General have acted solely on the advice of the local ministers, rather than on that of the British Government. As in the United Kingdom, the ministers generally maintain the support of the legislature and are the ones who secure the passage of bills; therefore, they are unlikely to advise the Sovereign's representative to withhold Assent.

The power to withhold the Royal Assent was notably exercised by Alberta's Lieutenant Governor, John C. Bowen, in 1937, in respect of three bills passed under William Aberhart's Social Credit Government. Two bills sought to put banks under the authority of the province, thereby interfering with the federal government's powers. The third, the Accurate News and Information Bill, purported to force newspapers to print government rebuttals to stories to which the provincial cabinet objected. The unconstitutionality of all three bills was later confirmed by the Supreme Court of Canada and by the Privy Council.

A technical issue arose with the Royal Assent in Australia in 1976 and 2001. In 1976 a bill originated in the House of Representatives which had not been passed by both Houses was mistakenly forwarded to the Governor-General and assented to. There was confusion because two bills of the same title had originated in the House. When the error was discovered the Governor-General revoked the purported assent and assented to the bill which had actually passed. A similar procedure was followed to correct an error in a House bill in 2001.

Scholars have discussed circumstances under which the use of the power would be justified, for example in the context of Quebec sovereignism. Some legal scholars have suggested that the Lieutenant Governor of Quebec would be justified in withholding Assent from a bill that would separate the province from the remainder of Canada.

[edit] Ceremony

In Commonwealth Realms, Assent may be granted by the Sovereign in person, by the Governor-General in person, or by a deputy acting for the Governor-General. In all of the Realms, however, Assent is more often granted or signified outside the legislature, with each House being notified separately.

In Australia, the formal ceremony of granting Assent in Parliament has not been regularly used since the early twentieth century. Now, the bill is sent to the Governor-General's residence by the House in which it originated. The Governor-General then signs the bill, sending messages to the President of the Senate and the Speaker of the House of Representatives, who notify their respective Houses of the Governor-General's action. A similar practice is followed in New Zealand, where the Governor-General has not personally granted the Royal Assent in Parliament since 1875.

In Canada, the traditional ceremony for granting Assent in Parliament was regularly used until the twenty-first century, long after it had been discontinued in the United Kingdom and other Commonwealth Realms. Under the Royal Assent Act (2002), however, the alternative practice of granting Assent in writing, with each House being notified separately, was introduced. As the Act provides, the Royal Assent is signified in the Senate Chamber at least twice each calendar year: for the first appropriation measure and for the first non-appropriation measure passed. (But the Act provides that a grant of Royal Assent is not rendered invalid by a failure to employ the traditional ceremony where required.) Assent may be granted in the Senate Chamber by the Governor General, or, more often, by a Deputy (usually a Justice of the Supreme Court, all nine of whom are Deputy Governors General). The last traditional royal assent, with the Governor General being present, took place on 12 December 2006 (see attached image).

[edit] New Zealand

In New Zealand section 16 of the Constitution Act 1986 states how royal assent is given: "A Bill passed by the House of Representatives shall become law when the Sovereign or the Governor-General assents to it and signs it in token of such assent". This act also states in section 3 that royal assent can be given by the Queen in person or the Governor General on behalf of the Queen.

See also: Constitution of New Zealand

[edit] British Crown Dependencies

[edit] Channel Islands

The Lieutenant Governors of the Channel Islands do not grant Royal Assent. Instead, the Sovereign directly grants Royal Assent by use of Orders in Council. Assent is granted or refused on the advice of the Department for Constitutional Affairs in the UK.

[edit] Isle of Man

The Isle of Man is an exception. The Lieutenant Governor is able to grant Royal Assent to bills passed by Tynwald (the Island's parliament). In doing so, he acts on the advice of the Department of Constitutional Affairs in the UK (the UK having responsibility for defence, international relations, and 'good governance'), and there are therefore occasions when consent is denied. Some important bills are still reserved to be approved by the Sovereign directly.

There is no ceremony used in granting consent, as even though it converts the Bill into an Act of Tynwald, it is insufficient for the new Act to take effect. Within eighteen months of passage an Act of Tynwald must be promulgated, or it will lapse.

A special promulgation ceremony is held each year on Tynwald Day (July 5). Members of Tynwald assemble for a religious service at the Royal Chapel, and then proceed to Tynwald Hill, where the Acts are officially promulgated by two Deemsters (judges), who read aloud the titles of the Acts in English and Manx in turn.

Tynwald then reconvenes in the Royal Chapel, where the promulgation is certified.

[edit] British overseas territories

The Governors (or Lieutenant Governor) of each British overseas territories grants (or refuses) the Royal Assent for the territory's legislation.^[1][2][3][4] They may also reserve a bill to allow the Sovereign to make a personal decision.

[edit] Former British colonies and possessions

[edit] Hong Kong

When Hong Kong was under British rule, bills passed by the Legislative Council were required constitutionally to have the royal assent signified by the Governor.^[5][6]

After the territory's transfer of sovereignty to become a special administrative region of the People's Republic of China, bills are signed and promulgated by the Chief Executive, who is both the head of the territory and the head of government, to become ordinances.^[7][8]

[edit] Other countries

Other nations usually have a process whereby laws are promulgated. In Commonwealth states that are not Realms, the phrase "Assent" is usually employed. As in the United Kingdom, the grant of Assent by the head of state is usually a ceremonial procedure. In the United States and most other presidential republics, the President "signs bills into law"; the power may trace its roots to the British concept of the Royal Assent, but is substantive rather than ceremonial, as the president also has the option to veto bills. In most other nations, the head of state "sanctions" or "promulgates" the law.

In many monarchies, such as Spain, Belgium, Norway, Denmark, Luxembourg, Malaysia and Japan, the monarch is responsible for promulgating laws. In other monarchies, such as the Netherlands and Sweden, the Government officially promulgates laws. In both cases, however, the process is usually ceremonial, whether by constitutional convention or by an explicit provision of the Constitution.

In Belgium the sanction royale has the same legal effect as Royal Assent. The government is responsible if the King refuses the royal sanction. The King promulgates the law. This means the King formally publishes the law and orders that it be executed. In 1990, when King Baudouin advised the government he could not, in conscience, sign a bill decriminalizing abortion, the Council of Ministers declared him incapable of exercising his powers at his own request. The bill was then assented to by all members of the council on the King's behalf. Both houses of Parliament declared the King capable of exercising his powers again the next day.

The Norwegian constitution (Articles 77-79) specifically grants to the King of Norway the right to withhold Royal Assent from any bill passed by the Sorting (parliament). Should the king choose to exercize this power, Article 79 provides a means by which his veto may be overridden: "If a Bill has been passed unaltered by two sessions of the Storting, constituted after two separate successive elections and separated from each other by at least two intervening sessions of the Storting, without a divergent Bill having been passed by any Storting in the period between the first and last adoption, and it is then submitted to the King with a petition that His Majesty shall not refuse his assent to a Bill which, after the most mature deliberation, the Storting considers to be beneficial, it shall become law even if the Royal Assent is not accorded before the Storting goes into recess." This prerogative has never been used by any king since Norway gained independence in 1905, though it was used by Swedish kings when they ruled Norway (see, for instance, under Wikipedia article "Dissolution of the union between Norway and Sweden in 1905.")

The only other European monarchy that actually allows the monarch to withhold Royal Assent of his or her own will is Liechtenstein. When Prince Hans Adam II, in an unprecedented move for the constitutional monarchy, refused to give Royal Assent to a bill legalising abortion, he pushed for a bill to give him sweeping powers in the government beyond only ceremonial matters, including the power to appoint judges. Though in a moment of pique, he had once quipped that he would sell the country to Bill Gates and rename it Microsoft, he did seriously threaten to move to Austria with the Princely Family. The bill did pass, and the Prince now has many additional powers, including the power to withhold Royal Assent on his own accord.

[edit] Notes

[edit] References

• "Act of Parliament" Encyclopædia Britannica, 11th ed. London (1911): Cambridge University Press.
• Bond, M. F. (1956). "La Reyne le Veult: The making and keeping of Acts at Westminster." In History Today. (Vol. 6, pp. 756–773).
• Davies, M. (2003). Companion to the Standing Orders and guide to the Proceedings of the House of Lords, 19th ed.
• Farnborough, T. E. May, 1st Baron. (1896). The Constitutional History of England since the Accession of George the Third 1760–1860, 11th ed. (Vol. 1). London: Longmans, Green and Co.
• The High Court of Tynwald. (2004). "Tynwald at St John's."
• Legislative Assembly of Alberta. (2004). The Honourable John C. Bowen, 1937–50."
• "Parliament" Encyclopædia Britannica, 11th ed. London (1911): Cambridge University Press.
• Robertson, J. R. (2001). "Bill S-13: The Royal Assent Act."
• Royal Assent Act. (2002, c. 15). Ottawa: The Queen's Printer.
• Australian Senate Practice