What is Queen’s Consent?

The Queen is far more popular than any politician, perhaps because we have no way of assessing whether she does a good job, or even working out what her job really is. The monarchy goes to astonishing lengths to keep its activities secret and is immune from the increased scrutiny and transparency that other public bodies face. Cabinet Office documents set to be released under the freedom of information act, which the government has fought a lengthy legal battle to keep secret, will reveal an unknown and unaccountable role in the legislative process that appears to go beyond symbolic rubber-stamping. This is the little-known process of Queen’s Consent, requiring royal approval for any bill that affects the Crown’s interests.

Bills that affect the Crown’s “prerogative powers” or “hereditary revenues, personal property or other interests” require Queen’s Consent, according to the Cabinet Office’s Guide to Making Legislation. This is distinct from the formality of Royal Assent, the final stage of a bill, because it is required between readings in Parliament as a bill is being drafted. The Queen has been asked to consent to a wide range of recent bills that affect her ‘personal interests’, curiously including the BBC License-Fee Payers Bill. The Prince of Wales has a similar right of Prince’s Consent, stemming from archaic powers as Duchy of Cornwall and heir to the throne.

Little is known about how the process works, which is subject to absolute secrecy. The Queen’s official documents are exempt from the freedom of information act and, unlike other public records, do not have to be released after 30 years. Against the general trend towards increased accountability of public bodies, in 2011 this was strengthened to give the monarchy “absolute instead of a qualified exemption” to “protect the sovereign’s right to counsel, encourage and warn her government”, according to Justice Secretary at the time Ken Clarke. The change meant that even documents that pass the public interest test are protected. Remarkably, this secrecy means we can only speculate on a crucial question: is Queen’s Consent a mere formality like Royal Assent, or does it allow royals to influence certain bills whilst they are being drafted?

It is vital that the monarchy is restricted to a ceremonial role with only symbolic power over legislation in practice. There should be no grey areas or doubt; this is an inviolable convention resulting from centuries of struggle against rule by divine right and aristocracy. Documents set to be released under the freedom of information act may shed some light on the influence that Queen’s Consent gives. The information commissioner ruled that two detailed, internal Whitehall manuals outlining the criteria deciding when royals are asked to consent to draft laws must be released by 25th September, barring an appeal, after the government lost its legal battle to prevent their release. The request evaded royal exemptions from the act, because these are confidential civil service manuals, rather than Palace documents. Will they reveal a power that allows royals to privately lobby bills that affect their personal interests?

It is well-known that Prince Charles tries to meddle in areas of government policy, openly through the media and in private through correspondence with ministers. Through the media, he has given his views on issues such as GM foods, global warming, alternative medicine, fox hunting and planning laws. In private, he regularly writes to and meets ministers to express his views. High Court Judge Justice Vos criticised his interference in the Chelsea Barracks development, after Prince Charles spoke to the Qatari Prime Minister to express his opposition, whilst Alistair Campbell’s diaries recently allege that he overstepped his constitutional role in areas such as agriculture and the environment. His power is significantly strengthened when backed up by Prince’s Consent, and it would not be surprising if he commented and suggested amendments to bills requiring his approval. Even if he is tactless but ultimately harmless (and it is difficult to imagine ministers taking him too seriously when he tries to convince them to extend ‘alternative’ medicine on the NHS, for example) he should be tactless transparently when wielding such formidable formal powers. Even a relatively minor role in a bill should be open and accountable.

The Queen is far more diplomatic, but it is still plausible that Queen’s Consent is a little more than a formality. She clearly has a degree of informal influence, meeting the Prime Minister alone once a week (without private secretaries or aides), at which she has “the right and duty to express her views on government matters” according to her official website. Queen’s Consent as bills pass through parliament is needed on a wide range of bills that only seem to loosely affect her personal interests, and the only available evidence does imply that it is more than a simple rubber-stamping process. The Guide to Making Legislation advises that “the Palace must be given as much time as possible and never fewer than 14 days to consider requests” and “will not reply until they have received any comments” from a list of legal advisers and officials. The more detailed guidelines set to be released will make it clearer.

Even if the monarchy has acted with perfect neutrality, there is no good reason to keep any stage in the democratic legislative process secretive and unaccountable. All correspondence between royalty and government ministers relating to Queen’s Consent and Prince’s Consent should be made public. The argument that transparency will violate the political neutrality on which the monarchy is grounded is flimsy: if they have acted neutrally as convention demands correspondence will confirm this and end speculation; if they have influenced legislation in any way, it should obviously be revealed. Especially when Prince Charles has consistently overstepped constitutional boundaries, it is clearly in the public interest that his influence in Whitehall is revealed.

It is near-universally accepted that the Queen simply rubber-stamps legislation, but as the law stands it is impossible to scrutinise whether this is really the case. The monarchy has deftly adapted and evolved over centuries, gradually conceding power to institutions that would otherwise threaten it. To bring itself into the 21st century it needs to embrace transparency and accountability, starting with revealing how Queen’s Consent really works.