,
16 tweets,
3 min read
Read on Twitter
I am astonished that Sir Stephen Laws has apparently said this (I didn't hear him this morning). I think it reflects a serious misunderstanding of the constitution.
Sir Stephen is a much more eminent lawyer than me, having been First Parliamentary Counsel. I am a mere undoctored law lecturer who was once a government legal footsoldier. Credentials are undoubtedly on his side. But now let's look at the substance of his point.
What he's saying depends on the belief that HMQ must follow ministerial advice to give Royal assent to bills. But that can't be right, if you think about it.
If it were right, then ministers would have an untrammelled power to veto bills on partisan grounds, not governed even by convention. Parliamentary sovereignty would ultimately be subject to government approval. This claim surely turns our constitution on its head.
If Sir Stephen were right, it also makes you wonder why law students are taught that Royal assent is governed by convention, meaning that HMQ has a constitutional duty (i.e. binding in political conscience rather then law) to assent to bills passed by both Houses.
Any such convention would be redundant if Sir Stephen were correct. It would be overridden by the prime duty on her to follow ministerial advice. Since ministers are rarely neutral about legislation, the convention wouldn't be real.
I guess Sir Stephen might say there are 2 conventions: (1) HMQ's duty to follow ministers' advice on Royal assent; (2) HMG's duty to advise assent to bills passed by both Houses. That theory would produce something like what we see happen in practice. But it has problems.
First, it inserts HMG as an unnecessary mediator between the three parts of Parliament. I call Ockham's razor on that. If the idea is that HMQ should normally assent to bills, then you don't need to insert ministers' advice into the process.
Second, if this were Sir Stephen's theory it would establish a hierarchy among the two conventions. For HMG to be able to "assert its authority" as he seems to have said, the putative "convention" that HMQ follows HMG's advice would need to override the real convention.
Again, that really just means the "two conventions" would boil down to one, the first one. That must be the wrong way round as it would mean that, whenever MPs disagreed with HMG, government's view would prevail. Surely we settled this the other way some time ago.
Third, Sir Stephen's theory would still (even in my imaginary weak form) give HMG uncontrolled power to veto legislation by departing from conventional practice either whenever it disliked a bill, or at least where it unilaterally claimed a bill was somehow "unconstitutional".
But the whole concept of an unconstitutional bill is alien to a system of Parliamentary sovereignty. Sir Stephen can only mean he thinks ministers can veto any bill they disagree with.
And this power would be uncontrolled. Not by convention, not by law. Unless Sir Stephen claimed that decisions to advise HMQ to withhold Royal assent are judicially reviewable. But if they were, why wouldn't HMG's decisions to advise HMQ grant assent be reviewable too?
That sort of judicial review is unheard of. In reality therefore Sir Stephen must believe in the absolute power of government to veto Parliament on partisan or policy grounds. This view can't be reconciled with traditional ideas about our constitution, and must be wrong.
The truth must be that by convention HMQ assents to bills passed by both Houses. Ministerial advice is irrelevant. This is what law students are taught and is consistent with traditional thinking. In reality, Sir Stephen is suggesting HMQ breach the true convention to suit HMG.
I find it breathtaking that a lawyer so much more eminent than me and so experienced can have expressed this in my view wrong-headed, heretical and dangerous misunderstanding of a constitutional fundamental. We need more public education about it.
