Braking the law: Is there, and should there be, an executive veto over laws made by parliament?

During the Brexit crises of 2019, something exceptionally rare happened twice in less than six months: parliament passed legislation without the government’s consent. But are there constitutional veto mechanisms that governments can use to prevent this? In a new Unit report, Paul Evans explores this question in detail. He summarises his conclusions here.  

What do executive vetoes look like?

Many constitutional democracies include mechanisms whereby a head of state can veto a law made by the legislature, but few of these are absolute vetoes. Most are suspensory, inviting the legislature to think again, but giving it the last word. The US Constitution is the most obvious example of such an arrangement. France has a broadly similar system but, as with many if not most such vetoes, it isn’t used. Some states (for example Iceland) enable the president to put a law to a referendum. Others (such as Ireland) leave the last word with a constitutional court, but only on matters of constitutionality, not on grounds of political disagreement.

In the UK (and most of the old dominions which retain the Queen as head of state) such an arrangement looks impossible. The executive and the legislature are fused – they can’t have different views. The executive as a lawmaker in the UK only exists as an element of the sovereign parliament (the somewhat misleadingly titled ‘Crown-in-Parliament’). The sovereign has no personal stake in the making of law. They must do as parliament decides. As long ago as 1867, Walter Bagehot expressed this constitutional fact with typical rhetorical brio:

The popular theory of the English Constitution involves two errors as to the Sovereign. First, in its oldest form at least, it considers him as an ‘Estate of the Realm’, a separate co-ordinate authority with the House of Lords and the House of Commons. This and much else the Sovereign once was, but this he is no longer. That authority could only be exercised by a monarch with a legislative veto. He should be able to reject bills, if not as the House of Commons rejects them, at least as the House of Peers rejects them. But the Queen has no such veto. She must sign her own death warrant if the two Houses unanimously send it up to her. It is a fiction of the past to ascribe to her legislative power. She has long ceased to have any.

Withholding of royal assent

Nonetheless, when the first stirrings of what was to become the Cooper-Letwin Act (the European Union (Withdrawal) Act 2019) began in the Commons in early 2019, it was suggested in some quarters that ministers could advise the sovereign to refuse royal assent to an Act agreed upon by parliament. The same argument re-emerged six months later in relation to the Benn-Burt Act (the European Union (Withdrawal) Act (No. 2) 2019), which Boris Johnson insisted on referring to repeatedly as the ‘Surrender Act’. But, despite these theoretical arguments, subsequent events appear to have confirmed that this concept of a royal veto is definitely a dead letter. Queen Anne was the last sovereign to decline the royal assent to an Act passed by parliament – in 1707 (or 1708 if you prefer to apply retrospectively the change of the new year from 25 March to 1 January in 1752).

It was discussed again as a possibility in 1913/14 in relation to the Government of Ireland Act – the first to be passed under the Parliament Act 1911, that is without the consent of the House of Lords. The leader of the Conservative opposition, Arthur Balfour, at the time argued that ‘It is surely obvious that if a prerogative ought rarely to be used, it cannot become obsolete merely because it is rarely used’. But it wasn’t used then.

And at the only other point, 2019, in the more than 300 years since Queen Anne may have defied parliament (it’s not clear that she really was) when it seemed at all plausible that the government might want to exercise a veto over a bill passed by the two Houses, it wasn’t used yet again. It might be yet another century before such an occasion recurs – surely even Balfour would be hard pressed to claim that a theoretical power which has lain unexercised for over 300 years is a living part of the constitution.

Royal assent isn’t even a thing

For all practical (and most theoretical) purposes, the notion that whether to grant royal assent is a choice is no longer part of the UK constitution, and there is no gap in the mechanics by which it is signified into which a veto could be inserted. It would be a useful if small contribution to having a more comprehensible and stable constitution if parliament simply found a way to declare this truth to be self-evident, so that we didn’t have to rerun the argument again when parliament did something of which a government disapproved.

Stopping bills before they’ve even started

Mostly the problem never arises because, in what we think of as normal times, government has pretty much exclusive power of legislative initiative at Westminster, through its control of the agenda of the House of Commons, and unique ability to control the time available for legislation to be passed. When the government has a reliable majority, at least in support of its central policies, if any bills it dislikes do get off the ground it can use its majority to kill them. But if the barriers of agenda control and timetabling powers have been overcome, as they were on the two occasions in 2019 when the Cooper-Letwin and Benn-Burt bills became Acts, and a majority is uncertain, there may be other ways in which the executive could seek to stymie non-government legislative initiatives, by preventing the Commons even being able to vote on a matter.

A Commons courtesy

It was suggested last year that the requirement, in a pretty limited number of cases, to secure the Queen’s consent to bills touching upon the prerogative powers of the sovereign could be used to thwart parliament’s will. But the practice has nothing really to do with the government – ministers are only the postmen plying between the Westminster and Buckingham palaces.

Could ministers plausibly simply fail to ask the sovereign for their consent or delay delivering their reply and so prevent a bill getting a third reading if it affected one of the prerogative powers which theoretically are exercised by the Crown but in practice are exercised by the government? In theory they could, and foot-dragging over this process could in theory be a way of delaying testing the will of parliament.

But it is not a veto. The practice is a self-imposed rule of parliament. It is a courtesy to the reigning monarch. It is not a constitutional principle. If it were to be deployed by ministers as a weapon of delay (which would itself be a breach of our constitutional conventions), parliament could ask the sovereign directly. Or, of its own volition, unilaterally set the requirement aside (if there were a majority to do so).

To avoid any future potential embarrassment to the sovereign through ministerial misbehaviour over this task, the sensible thing to do would be for the Crown to make clear that its prerogatives are placed at the disposal of parliament in perpetuity (a promise that could be reaffirmed at the start of each new parliament or even each new reign for ceremonial purposes).

Circumscribing the prerogative is what parliament does. It doesn’t need to ask anyone’s permission to perform one of its central functions.

Who holds the purse strings?

There is another residue of the constitutional ‘Crown’ though which does offer the executive a form of anticipatory veto, through which it can prevent the Commons agreeing legislation of which it disapproves without having to test its majority. The ‘rule of Crown initiative’ prevents the House of Commons from initiating or increasing public expenditure. The principle of the rule is replicated in different forms in many constitutions and basic laws throughout the democratic world, but especially in the old dominions.

The rule’s application to legislation at Westminster means that a non-ministerial MP cannot introduce a bill of which the main purpose would be to give rise to some new form of public expenditure or taxation. But it also requires that any clause of any bill which has been introduced which would entail novel expenditure or create a new ‘charge upon the people’ must be sanctioned by a separate ‘financial resolution’ before it can proceed to its committee stage – and the motion for such a resolution can only be moved by a minister acting on behalf of the whole government.  Without such prior authorisation any amendment entailing significant revenue implications proposed to a bill at any stage of its career would be ruled out of order by the Chair and would not be selected for debate or decision.

The ‘Crown’ in this case is squarely the government of the day – the sovereign in person has no part in the rule’s application and in practice is not consulted about its use. And while in the past there was a convention that if a bill got a second reading a minister would propose such a motion, the rule has been used increasingly in recent years to block non-government bills from making progress.

In the 2017-19 session a private member’s bill was put forward to reverse the provisions of the Parliamentary Constituencies and Voting Systems Act 2011 which cut the size of the House of Commons from 650 to 600. The government refused to table a financial resolution which would have enabled it to progress beyond second reading (which it had secured by 229 votes to 44). An attempt by the opposition to secure a resolution to set aside the rule to allow the bill to progress in committee failed narrowly.

In the previous session a private member’s bill to hold a referendum on membership of the EU, which received a second reading by 283 votes to none, was also blocked from making any further progress by the absence of a government-sponsored money resolution. Another backbench bill in the same session, designed largely to remove the so-called ‘bedroom tax’, which obtained a second reading by 306 to 231 votes (an astonishing turnout on a private members’ Friday) was blocked from further progress by the same device.

So the ‘Crown’ – in this context the government of the day – can frustrate the progress of a significant proportion of unwelcome legislation during its passage, even if it cannot command a consistent majority in the House of Commons to defeat such a bill in open combat under the rule of Crown initiative. The Cooper-Letwin and Benn-Burt Acts escaped this trap by not entailing any significant expenditure. But bills to legislate, for example, for a second referendum, or a Norway-style trade relationship with the EU, or to revoke or significantly delay the effect of Article 50 probably would have been caught. So they were never tried, even at a stage where there might have been an outside chance of one or other of them commanding a majority in parliament.

It all comes down to money in the end…

If there is an executive veto in the UK constitution, it is the rule of Crown initiative. The way it is currently applied is a significant factor in balancing legislative power in favour of the executive even where the government cannot be sure of being able to command a majority in the Commons; and there is little obvious scope for the legislature to work around it. And without money to spend, the scope of politics is pretty limited – though not, as the two Cooper-Letwin and Benn-Burt Acts demonstrate, completely voided.

Could we make this all a bit clearer?

If we had a written constitution in the UK then perhaps this report would not have been needed. It seems a reasonable expectation that people should be able to find, pretty easily, the answer to the question of whether the executive has a veto over laws made by their parliament. But the status of royal assent is still claimed by some to be undetermined. And few, if any, will know that parliament isn’t allowed to propose new ways of spending money without the government’s prior permission.

If the executive veto doesn’t exist, should we invent it?

Perhaps, were we to have the constitutional convention that some reformers dream of, the question of whether we should have an executive veto would come up. What might the answers be?

On whether there should be some form of veto after parliament has agreed the law, the choice looks fairly binary. Either we can make clear that the sovereign as head of state has no discretion over whether to promulgate the laws made by the legislature. Or, looking to international best practice, we could decide that there needs to be a constitutional longstop to protect the people from the risk of an out-of-control elective dictatorship (making the notion of a ‘constitutional monarchy’ – as opposed to Bagehot’s ‘disguised republic’ – more real). The sovereign could be given a veto (whether suspensory or final) over laws which were repugnant to the constitution and the rule of law, or were not made in accordance with due process. But that veto could not be exercised on the advice of his or her ministers, who are part of parliament and derive their authority from it. The sovereign would need an independent source of advice which was outside and above party politics. It could be the Supreme Court. Or we could try and devise another council of the wise – but it would need to enjoy a very high level of trust.

On the question of whether the legislature should be limited in its ability to propose new ways of spending public money without the prior permission of the government, the potential answers look more complicated. Many other democracies have the equivalent of the rule of Crown initiative in their constitutional documents, and the need to enable executives to balance their income and expenditure is generally an accepted requirement of good government. On the other hand, the US Constitution, for example, places the power of financial initiative firmly with the House of Representatives. And there are many shades of control between an outright fiscal emasculation of the legislature and a free-for-all.

If we were looking for a middle way, New Zealand might have something to teach us. There, they replaced the rule in 1995 with something called the ‘executive financial veto’. It does what it says on the tin. But importantly, it places formal requirements of justification and explanation on the executive when the veto is exercised and opens the door to negotiation between parliament and government. And in 2005 they stripped the residue of the rule, which had been bequeathed to them by Westminster, out of their Constitution Act. That made clear that the rule was a self-imposed discipline accepted by their parliament, and that it was up to parliament to decide whether to retain it. It meant the basis for the rule no longer depended on an obscure theology developed by an invisible priesthood around some mysterious and unassailable entity called (entirely misleadingly) the ‘Crown’.

This blog has been kindly shared by the Constitution Unit Blog.

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