THE ROYAL ASSENT
1
Of the incidents to be witnessed at Westminster associated with
the evolution of an Act of Parliament, one of the most curious and
certainly the most picturesque is the announcement in the House
of Lords of the Royal Assent. In theory, it is from the King all
legislation proceeds. Parliament but agrees. Each statute opens with
what is called “the enacting clause,” which is as follows:
Be it enacted by the 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:
This formula contains within it, brief as it is, a history of the
development of the legislative power. At first the King made laws; next
he made them with the advice and consent of Lords and Commons; and
finally in the reign of Henry VII--about the middle of the fifteenth
century--“by the authority of the same,” thus proclaiming that the two
Houses had become exclusively possessed of the power to make statute
law. The power of the Crown in regard to legislation has never, since
the reign of Henry VII, been more than a right to express assent or
dissent to Bills which have passed both Houses. This right, according
to the theory of the Constitution, still exists. Therefore, before any
Bill which has passed both Houses is declared to be the law of the
land it must be presented to the King and receive the Royal Assent.
But Bills are not now laid before the Sovereign that he may exercise
his independent judgment upon them, rejecting some and approving
others as he thinks fit. The “veto” of the Sovereign to reject Bills
according to the bias of his own personal views has completely lapsed.
He could not personally say “nay” to any of them. He is bound to act on
the advice of his Ministers. The theory of the Constitution that the
veto of the Crown still exists has its uses. Just as the assent of the
Crown is really the assent of the Ministers, by whom the Bills have
been introduced, so the veto of the Crown, should it ever be exercised,
would really be the veto of the Ministers. If it were found desirable
at the twelfth hour not to place on the Statute Book a Bill which had
passed both Houses, the Sovereign need only say “nay,” on the advice
of the Ministers, and the measure would be as dead as if it had been
rejected on a division in the House of Commons or the House of Lords.
Even George III, who endeavoured to rule as well as to reign,
recognized that the giving of the Royal Assent had become but a matter
of form. Lord Eldon has told the story of his visit as Lord Chancellor
to Kew to obtain the assent of George III to certain measures. He was
reading a list of the titles of the Bills and explaining briefly their
provisions, when the King, interrupting him, said: “You are not acting
correctly. You should do one of two things: either bring me down the
Bills for my perusal, or say as Thurlow once said to me on a like
occasion. Having read several of the Bills, Thurlow stopped and said to
me, ‘It is all damned nonsense trying to make you understand them, and
you had better consent to them at once.’”
2
What really happens now is that, when a number of Bills await the
Royal Assent in the House of Lords, their titles are submitted to
the King for approval by the Clerk of the Crown, and Letters Patent,
signed by the King, are issued under the Great Seal, appointing a
Royal Commission, consisting of five peers, to go through the form
of assenting to these Bills on behalf of his Majesty. Then the
House of Lords meets for the ceremony. The five Lords Commissioners
are seen in vivid scarlet robes slashed with ermine, white as the
driven snow, seated all in a row, on a bench immediately beneath the
imposing Throne. In front of them is the scarlet Woolsack--like a
comfortable well-padded lounge--on which rests the glittering Mace
and the embroidered satchel which is supposed to hold the Great Seal.
The centre figure is the Lord Chancellor. He wears on top of his
full-bottomed wig a three-cornered hat. The others have cocked hats.
What does it symbolize, this difference in head-dress? Why should the
Lord Chancellor wear his hat athwart his head, and his colleagues wear
theirs fore and aft? The distinction must have had a meaning once,
but what it was there is no one alive to tell. At a nod from the Lord
Chancellor, “Black Rod,” the messenger of the Lords, goes to the Lower
Chamber to summon the Commons, for both Houses must be present at the
ceremony, and in a few minutes he returns with Mr. Speaker, attended
by the Clerk and the Serjeant-at-Arms, and followed by a crowd of
Members who congregate at the Bar or overflow into their galleries.
The Lords Commissioners retain their seats when the Commons appear at
the Bar, but they raise their hats in acknowledgment of the profound
bow of the Speaker. The Reading Clerk reads the Royal Commission, a
long proclamation engrossed on parchment, having a wafer of the Great
Seal attached by a silken cord, in which is set forth, with much
circumlocution, in the name of the King, that his Majesty has appointed
“our most trusted and well-beloved councillor” the Lord Chancellor,
and “our most dear cousins and councillors,” or “our well-beloved
and faithful councillors,” naming the other Commissioners--each peer
doffing his hat at the mention of his name and title--to signify the
Royal Assent to Bills by Commission. Then the Clerk of the Crown and
the Clerk of the Parliaments take up positions, one on each side of
the Table. The Clerk of the Crown, standing on the Opposition side
and provided with a list of the Bills awaiting the Royal Assent,
bows to the Commissioners and reads the title of the first Bill.
The Clerk of the Parliaments, standing on the Government side, then
does his appointed part in the ceremony. He first bows to the Lords
Commissioners, then turns to Mr. Speaker and the Commons at the Bar,
and declares to them the Royal Assent in the Norman-French phrase,
“Le roy le veult,” or, “The King wills it.” That particular Bill has
been thus transformed into an Act of Parliament. The Clerk of the Crown
again bows to the Commissioners, reads the title of another Bill,
bows once more, and again the Clerk of the Parliaments bows to the
Commissioners, then turning to the Commons, he again declares “Le roy
le veult.” And so on till the list of Bills is gone through.
There is a change made now and then in the form of words in which the
Clerk of the Parliaments announces the Royal Assent. If the measure be
a private Bill, such as a Bill empowering a gas, or water, or railway
company to extend its operations, he says: “Soit fait comme il est
desire”; or should the Bill be one for granting subsidies to the Crown,
he says: “Le roy remercie ses bon sujets, accepte leur benevolence, et
ainsi le veult.”
If the Sovereign thought fit to refuse assent to a Bill--not because of
any personal objection to its provisions, but because he was advised
to do so by his Ministers--the Clerk would declare it in the mild
fashion of “Le roy (or la reigne) s’avisera,” “the King (or Queen)
will consider it.” But in 1707, when Queen Anne withheld her approval
of a “Bill for the Militia of that part of Great Britain called
Scotland,” this expression was heard for the last time in the House
of Lords. It is asserted by some constitutional writers that Queen
Anne thereby overruled the wishes not only of both Houses but of her
Ministers. That is not so. The Queen exercised her veto on the advice
of the Government. After the Bill had passed through all its stages,
there arose in Scotland a movement for the restoration of the Stuarts,
which in the opinion of the Government rendered the establishment of a
Militia in that country very inadvisable.
The use of Norman-French in this ceremony is a survival from the time,
at the very beginning of Parliament, when all the proceedings appear
to have been conducted in French, and when the King of England was
supposed to be the ruler also of France. English came into general use
in the reign of Henry VII, but the ancient form of giving the Royal
Assent was retained. The year 1707, in which, as I have said, the
Royal prerogative of refusing assent to a Bill was last exercised,
was remarkable also for a proposal to establish by legislation the
giving of the Royal Assent to Bills in the English tongue--the tongue
in which Oliver Cromwell gave his assent to Bills passed during the
Commonwealth. A Bill with that object was introduced in the House
of Lords, passed through all its stages there, and had got a second
reading in the House of Commons, when a dissolution of Parliament
terminated its career. Nothing was afterwards done to revive it. Close
on seventy years later a protest made in the House of Commons against
the use of Norman-French caused great hilarity. On December 4, 1772,
on the return of the Speaker and Commons from the House of Lords after
hearing the Royal Assent given to Bills, Richard Whitworth asked that
an address be presented to the King desiring him “to give his assent
in his own native language.” “The ceremony of the King’s Assent being
given in French is,” said Whitworth, “the remains of Norman slavery
and a disgrace to the British Parliament.” It is recorded in the
_Parliamentary History_ (_Hansard_) that “the House was in a continual
laugh” during the protest. The Speaker replied “very gravely” that the
matter was so weighty the House should take time to consider of it.
“This occasioned a second flow of good humour,” according to _Hansard_.
3
An Act has the force and effect of law on receiving the Royal Assent,
unless some date for the commencement of its operation is specifically
stated in the measure itself. Accordingly the Clerk of the Parliaments
is required to endorse on each Act, immediately after its title, the
day, the month, and the year the Royal Assent was given to it. And
that is the end of a mighty long story. When the procedure of passing
Bills was fashioned, Governments, no doubt, desired to interfere with
or control as little as possible the activities of the people by
legislation, and when legislation was deemed necessary it was made a
matter of long drawn out consideration. Life was simple then. Now it is
perplexingly complex. All the more reason, perhaps, that in the framing
of legislation neither time nor thought should be spared.
Acts of Parliament are not promulgated in any way. The ancient custom
of having them proclaimed by the sheriff in the market-place of each
county was suspended on the introduction of printing. They are printed
“by authority” by the King’s printers--which ensures their acceptance
as correct in every court of justice. Two copies of each Act are
specially printed on vellum. One is for preservation in the Rolls of
Parliament, deposited in the Victoria Tower, and being endorsed with
the Royal Assent is regarded as the official copy. The other copy is
sent to the Record Office. That is all that is done in the way of
bringing Acts of Parliament to the notice of the King’s subjects.
Nevertheless, all subjects are expected to know the law. Breach of a
statute is not extenuated by a plea of ignorance. The whole Nation
is, in strict constitutional theory, present within the walls of the
Palace of Westminster when the Estates of the Realm are engaged in
the work of legislation. Therefore, an Act of Parliament requires no
public notification in the country. In practice it is not easy for a
subject to get into the Houses of Parliament as a spectator, but of
that little detail the Constitution takes no count. The operation of a
statute, should a question of law arise out of it, is confined by the
interpretation given to its terms, or the construction put upon its
powers, by the Judges of the High Court. Another very interesting and
important fact in relation to Acts of Parliament is that each Act is
but the expression of the will of Parliament for the moment. Parliament
may, the very next day, recall it. An Act which is unchangeable and
everlasting is beyond the power of Parliament to pass. Every Act is
revocable or open to revision. Parliament is the transcendant and
absolute authority of the land. It is free and unfettered. It can bind
and loose. What one Parliament does can be undone by another.