Royal Assent
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The granting of Royal Assent is the formal method by which a Sovereign or the Sovereign's representative in the United Kingdom and in Commonwealth Realms completes the process of the enactment of legislation 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, 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).
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United Kingdom
In the United Kingdom of Great Britain and Northern Ireland, the Royal Assent 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 usually 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. Hence, in modern practice, the Royal Assent is usually granted; a refusal to do so would only be appropriate in an emergency requiring the use of the monarch's reserve powers.
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 scheme was officially adopted in 1295, when Edward I called a Parliament. 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 power of Parliament to refuse 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 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.
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 largely fallen into desuetude, both in the United Kingdom and in the Commonwealth Realms. As noted above, Assent is in practice nearly always granted.
There is a situation, however, in which a more direct monarchical assent is required for a bill. In order for any bill modifying the monarch's prerogative powers to be heard in Parliament, the monarch must first consent to its hearing. In 1999, Queen Elizabeth II, acting under the instructions 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.
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 circumstances direct that a bill be presented for Assent despite rejection 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 a mere ceremonial practice. 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 a 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 also wills it). 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. Now, the Lords Commissioners still officially declare that the Royal Assent has been granted, but they normally do so at Buckingham Palace, rather than in the House of Lords. The granting of Assent may be, in the words of the Act, "notified to each House of Parliament, sitting separately, by the Speaker of that House or in the case of his absence by the person acting as such Speaker." 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.
Commonwealth
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. In Crown colonies the Governor or Lieutenant Governor grants the Royal Assent. The Sovereign's representative may reserve a bill for the Sovereign's pleasure, that is to say, allow the Sovereign to make a personal decision on the bill. A Governor or Lieutenant Governor of a subnational entity may similarly 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.
The Lieutenant Governors of Crown dependencies do not grant the Royal Assent. Instead, the Sovereign directly grants the Royal Assent with Orders-in-Council (i.e., orders made during sessions of the Privy Council). The Isle of Man is an exception; the Lieutenant Governor grants the Royal Assent to most bills, but some important bills are approved by the Sovereign directly.
As in the United Kingdom, Royal Assent is by convention never withheld, both in the independent Commonwealth Realms and in British Crown colonies and dependencies. 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. Assent is also granted by the Sovereign personally when a bill is of great constitutional importance, such as Canada's 1980 Constitution of Canada.
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 (1776), 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.
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.
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. An identical practice is followed in New Zealand, where the Governor-General has not personally granted the Royal Assent in Parliament since 1875.
Canada_senate_chairs.jpg
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). Where the Governor General is present during a Royal Assent ceremony, he or she occupies the Throne, with his or her spouse on the side. A Deputy, however, does not occupy the Throne, instead employing the chair in front, which is normally used by the Speaker of the Senate (see adjacent image).
In the Isle of Man, a British Crown dependency, the Lieutenant Governor regularly grants the Royal Assent to bills passed by the Tynwald (the Manx legislature) without any special ceremony. Even after being granted the Royal Assent, however, the bill ceases to have effect within eighteen months of passage unless promulgated. A special promulgation ceremony is held each year on Tynwald Day (July 5). Members of the 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 (or judges), who read aloud the titles of the Acts in both Manx and English. The Tynwald then reconvenes in the Royal Chapel, where the promulgation is certified.
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, 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. 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.
The only European monarchy that actually allows the monarch to withhold Royal Assent of his or her own will is Liechtenstein. When the Prince, 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, threatening to move to Austria with the Royal Family, and to to sell the Royal Palace to Bill Gates. The bill did pass, and the Prince now has many additional powers, including the power to withhold Royal Assent on his own accord.
References
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- Bond, M. F. (1956). "La Reyne le Veult: The making and keeping of Acts at Westminster." In History Today. (Vol. 6, pp. 756–773). (http://www.parliament.uk/documents/upload/lareyne.pdf)
- Davies, M. (2003). Companion to the Standing Orders and guide to the Proceedings of the House of Lords, 19th ed. (http://www.parliament.the-stationery-office.co.uk/pa/ld/ldcomp/compso.htm)
- 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. (http://home.freeuk.com/don-aitken/EMaycontents.html)
- The High Court of Tynwald. (2004). "Tynwald at St John's." (http://www.tynwald.org.im/tynwald/tynwald-at-st-johns.shtml)
- Legislative Assembly of Alberta. (2004). The Honourable John C. Bowen, 1937–50." (http://www.assembly.ab.ca/lao/library/lt-gov/bowen.htm)
- "Parliament." (1911). Encyclopædia Britannica, 11th ed. London: Cambridge University Press.
- Proclamation of April 17, 1982, proclaiming in force the Constitution Act 1982. SI/82-97. (http://www.uni.ca/1982proc.html)
- Robertson, J. R. (2001). "Bill S-13: The Royal Assent Act." (http://www.parl.gc.ca/common/Bills_ls.asp?Parl=37&Ses=1&ls=S13)
- Royal Assent Act. (2002, c. 15). Ottawa: The Queen's Printer. (http://laws.justice.gc.ca/en/R-8.6/99248.html)no:Sanksjon