Can Her Majesty the Queen refuse the Royal Assent for a parliamentary Bill? This became a live issue in relation to the recent Marriage Act. To answer this question, it is necessary to turn to the 1688 constitutional settlement.
Those well versed in history will know that the seeds of the 1688 settlement were sown in 1603 with the advent of James I, who held the view that he ruled by Divine Right, and couldn’t be questioned.
Unfortunately, he saw kingship solely in terms of his rights, to the virtual exclusion of his responsibilities. In due course, James’ distorted view came to a head with his grandson, James II (1685-88), who sought to suspend or to dispense with any law that impeded his intention to impose Roman Catholicism upon Britain.
The constitutional settlement of 1688, enshrined in the Bill of Rights 1689, established constitutional monarchy, a balance of powers that is sometimes called ‘the King-in-Parliament’.
This expression means that no law can be enacted or repealed without the active involvement of the other; no Bill can become an Act without the Royal Assent, and every Act must originate as a parliamentary Bill.
Furthermore, William III and Mary II, and their successors, have also been required by the Coronation Oath Act 1688 solemnly to swear to maintain to the utmost of their power ‘the Laws of God’ and ‘the true Profession of the Gospel’.
It was this oath that the present Queen was required to take, both at her coronation on 2 June 1953 and before both Houses of Parliament on 4 November 1952.
The Coronation Oath Act was passed, as its preamble declares, to remove all doubt. Moreover, since Parliament passed it and has never repealed it, it must be taken as read that its provisions represent Parliament’s ongoing wishes.
Therefore, from its plain wording, its intention must be that no law has any validity where it is contrary to the Word of God. It is against this background that the operation of the Royal Assent should be understood.
In 2012, the British government announced that it was going to make a fundamental change to the law regarding marriage.
There was a prior ‘consultation’ of sorts; though this is really a misnomer since it was made clear that the government fully intended to go ahead, come what may.
There was no mention of the Bill in the Queen’s speech. No mention had been made of it at the General Election in 2010; though it must be said that ultimately the electorate cannot confer upon any government the right to overturn God’s law, since Proverbs 16:12 says that the throne is established by righteousness.
Ironically, the events bear a striking resemblance to those immediately before 1688. James II sought to suspend or dispense with laws at will. The present government has dispensed with the true definition of marriage without any real reference to anyone.
James dismissed a petition from the ‘seven bishops’ calling for the ancient laws and liberties to be upheld. The bishops were then charged with sedition — a vague offence, technically about stirring up ill will, amounting to insurrection between various classes of His Majesty’s subjects or against the government. In practice, the law of sedition forbade virtually any dissent, however appropriately expressed.
In 2013, the government ignored huge public petitions opposing the ‘redefinition’ of marriage. Meanwhile, effective public debate was stifled because of the chilling effect (which is set to increase) upon potential critics by a ‘hate crime’ commonly (though not legally) called ‘homophobia’.
The precise scope of this crime is very uncertain, which merely increases the discouragement of any dissent, however appropriately expressed.
In such dire circumstances, the question was raised, would HM the Queen refuse the Royal Assent to this Bill that is so obviously contrary to the Word of God?
The response from Buckingham Palace to this writer and to others was this: ‘There is no question of the Queen, as a constitutional Sovereign, refusing the Royal Assent to an Act which has been passed by both Houses of Parliament’. This is undoubtedly the constitutional advice on which the Queen has always acted.
Why ‘no question’?
In order to evaluate this response, and bearing in mind the 1688 constitutional settlement, one feels bound to ask, ‘Why is there “no question” of the Royal Assent being refused?’
It cannot be that the constitution denies her this option, else why would the Coronation Oath Act require the monarch to maintain to the utmost of her power the laws of God? If her power were non-existent, it could not be exercised to its utmost.
Therefore, taking it as read that HM the Queen must have some discretionary power in the matter, however small, can she refuse the Royal Assent?
Most constitutional experts insist that by custom and practice, known as convention, the Queen could only do so on ministerial advice. Yet this would surely defeat the whole purpose of the Coronation Oath Act, since no government minister would have advised her to refuse the Royal Assent to the Marriage (Same Sex Couples) Act.
So, whichever way one looks at it, the current advice, upon which the Queen relies, governing the Royal Assent fails to take full account of the spirit and intention of the 1688 constitutional settlement.
There has been a change in the law regarding marriage that is so radical, far-reaching and fundamental, as to be akin to a coup d’état. Parliament has departed from the very principles that it required the monarch to promise, to the utmost of her power, to maintain.
The curtain has finally fallen upon the 1688 settlement and it’s anyone’s guess what the future may hold.
Had the Royal Assent been refused, it would have been communicated to Parliament in these polite Norman-French words, La Reyne s’avisera, meaning, ‘The Queen will consider’.
And what is the supreme consideration? Her Majesty’s government has no power to override the Word of God, for, as Parliament effectively acknowledged in 1688, ‘There is no power but of God; the powers that be are ordained of God’ (Romans 13:1).
Peter Murcott LLB