Queen’s consent

Sunday National, 1st August 2021.

Before this week, I bet most of you had never heard of the idea of “Queen’s consent.” Distinct from the royal assent all Bills need to become law, Queen’s consent is one of those arcane conventions in which the UK’s uncodified constitution rejoices.

You might have imagined the Scottish Parliament would have been spared these royal falderals. You imagined wrong. This anachronism was written into the Scotland Act from the very start, forcing the new parliament to incorporate rules into its standing orders that Bills affecting “crown interests” shall not pass “unless such consent has been signified to the Parliament.”

In effect, this gives the palace the opportunity to vet legislation in Westminster and Holyrood. The Guardian revealed this week that the Queen’s lawyers have been using this process to secretly lobby Scottish Ministers for changes to energy and climate change legislation to spare her private estates from rules every other landowner in Scotland is subject to. Justified outrage followed.

The concept of what constitutes “crown interests” is astonishingly wide. Queen’s consent is required for two main categories of legislation. The first are changes to the royal prerogative. You can think of the prerogative as the residual legal powers of the sovereign. Putting it this way might suggest prerogative powers are small beer. They are not. The right to declare war, for example, is vested in the crown rather than in parliament. Your passport – “Her Britannic Majesty requests and requires” – is issued under the royal prerogative, and can be clawed back by the Home Office under it too.

But the second category is the real mischief. Queen’s consent is also required for any Bill which affects the “personal property or personal interests of the Crown.” This has particular resonances in Scotland, because of the Queen’s summer residence in Aberdeenshire.

Since the advent of devolution, the palace has resisted being subject to laws which apply to every other landowner and citizen in this country. When the Scottish Executive first introduced the “right to roam” across the Scottish countryside, the Queen’s private estates would have been exempted from responsible access. Their Nature Conservation Bill aimed to conserve biodiversity and safeguard natural habitats in Scotland – fine aspirations, as I’m sure the Prince of Wales would agree.

But as introduced, it too would not have applied to the Queen’s private property. Environmental measures in Balmoral would have been left up to her factor’s best judgment, while her subjects are subject to legal duties and environmental responsibilities.  It took the political intervention of Dennis Canavan to set these laws right on both counts, knocking the inegalitarian principle of “what goes on at Balmoral stays in Balmoral” on its head. But in the light of this week’s revelations, it looks like no accident these early laws were framed in such a deferential way.

The basic premise of the Queen’s consent is absurd in a modern democracy – and all the more so given the palace’s capacious view of what Bills need their sanction. The idea that the Queen’s permission is needed for Holyrood to debate new laws on alcohol licensing because Her Madge maintains a small tearoom at Balmoral and would find her gin-dispensary regulated by law is ludicrous. 

In the past, things like paid paternal leave after the birth of a new child have also been classified as requiring the Queen’s consent – because it means the palace needs to coin out for a couple of extra weeks off for the new fathers amongst its footmen and under butlers. The same went for legal recognition of civil partnerships in the UK, “because a declaration about the validity of a civil partnership would bind the Queen.” Quite what it would have bound the married sovereign to do – I leave to your legal imaginations. I’m stumped.

Since the Queen is liable to non-domestic rates on her private estates, her blessing is needed for changes to those too.  She even muscled in on legislation permitting child maintenance payments to be collected directly from employers. This apparently required Her Majesty’s leave “because of a possible increase in the number of cases in which the Queen had to make payments under such orders in respect of staff of the Royal Household.” The same tack has been taken to changes to national insurance contributions, and pensions, because this has implications for the pittance paid to the host of Her Majesty’s retainers.

Attempting to justify and excuse their covert lobbying, the palace put out a statement which dutifully did the rounds in the media. It is authentic courtier gibberish. The royal smoothies hoped to unruffle our feathers by reassuring us that: “the royal household can be consulted on bills in order to ensure the technical accuracy and consistency of the application of the bill to the crown, a complex legal principle governed by statute and common law. This process does not change the nature of any such bill.”

This might be true – if Queen’s consent was just a technical, rubber-stamping exercise. But it clearly isn’t working that way. How do we know that? Because the Queen is now the only soul in Scotland not subject to compulsory purchase orders under the new rules. This isn’t an accident of chance. This isn’t because the vetting of the Bill by palace lawyers ensured any kind of “technical” accuracy or consistency in it.

It is because the palace exploited the opportunity afforded by the relic of Queen’s consent to make substantive changes to the law, and ministers and parliament capitulated to it. They’ve been caught agitating to “change the nature” of the Bill. I doubt anyone has plans to dig up Royal Deeside to install heat pumps – but that’s hardly the point. It is about transparency and equality before the law.

The Scottish Government’s response to this controversy misses this critical point. Of course the amendments to the Bill were discussed in public. Clearly MSPs had the opportunity to pass or not to pass the special treatment for the Queen’s cold Victorian Disneyland. But what MSPs – and critically the public – did not and could not know was that these changes came on foot of private agitation by Her Majesty’s attorneys.

This is just one Act. We now know the Queen’s lawyers have vetted at least 67 Scottish Bills in the last twenty years. How often does the Palace request changes to the law based on the “personal property or personal interests of the Crown?” We don’t know.  How many provisions have found their way into – or out of – legislation because of helpful suggestions from the palace? We can’t say.

Under UK freedom of information laws, royal communications enjoy an absolute exemption from disclosure. But as Professor Aileen McHarg pointed out this week, under the Scottish legislation, “communications with Her Majesty, with other members of the Royal Family or with the Royal Household” can be published if the public interest favours disclosure.

A “senior Scottish Government official” quoted in the Guardian this week got to the heart of the problem here. “If the content of these consultations became known,” they said, “it might serve to undermine the appearance of the political neutrality of the sovereign.” I can’t make up my mind whether this statement is a clumsy attempt to assist Buck House, or the work of a republican subversive. If these memos reveal that the Queen is not politically neutral, if they show she agitates aggressively for her private interests, we’ll only be shattering illusions.  If regal representations are changing the law of the land, we all have a right to know.

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