A strange fact about Royal Assent to bills

The modern method of granting Royal Assent to bills began as a way to save Henry VIII embarrassment

As everyone knows, once a bill has been agreed in the same form by both Houses of Parliament, it requires Royal Assent—the formal approval of the monarch—before it becomes an act of Parliament. This is a foregone conclusion, one of the powers of the sovereign which is exercised without discretion: the King does not consider whether or not he approves. The last time it was not a formality was 11 March 1708, when Queen Anne refused to give Royal Assent to the Scottish Militia Bill, which would have established an armed force for the defence of Scotland.

Even this was not quite as dramatic as it might appear: the Queen’s refusal was on the advice of her ministers, who became anxious at the last minute, after Parliament had agreed to the bill, that a militia might prove disloyal. A French-sponsored fleet of privateers was preparing to transport the Jacobite pretender, James Stuart, son of King James II and VII, with 6,000 armed men to land in Scotland. The Queen’s ministers saw the danger of introducing more untested and unknown Scottish troops into the equation, so advised her not to let the bill pass into law.

It was not technically an outright veto. Royal Assent is given to bills in Norman French with the words Le Roy le veult (“The King wills it”), or, if the monarch is a woman, and more familiarly in recent decades, La Reyne le veult. The phrase is pronounced by the Clerk of the Parliaments in the House of Lords in response to the Clerk of the Crown in Chancery reading the title of the bill and is written on the physical copy of the bill. When Queen Anne withheld Royal Assent to the Scottish Militia Bill, however, the phrase used was La Reyne s’avisera, or “The Queen will advise herself”, but the effect was to stop the bill’s progress permanently.

(For fans of arcana, there are minor and rare variations on the Norman French used. Bills of Aids and Supplies, that is, bills which authorise expenditure or taxation, are granted Royal Assent with the words Le Roy remercie ses bons sujets, accepte leur benevolence, et ainsi le veult or “The King thanks his good subjects, accepts their bounty and wills it so”. For personal bills (which until 1948 were called private bills), based on a right to petition Parliament for redress from a specific wrong or to obatin a benefit not otherwise available by statute or the common law, the formula is Soit fait comme il est désiré or “Let it be done as it is desired”. Personal bills, formerly used to grant divorces, naturalisation, changes of name and so on are now vanishingly rare, and the last one to be passed was in 1987. The George Donald Evans and Deborah Jane Evans (Marriage Enabling) Act 1987 allowed a man to marry his former daughter-in-law.)

So Royal Assent is a purely ceremonial process now, and has been for centuries; what Bagehot would call a “dignified” rather than an “effective” element of the constitution. The last monarch to withhold Royal Assent on his own initiative as a political tool was William III, who between 1692 and 1696 vetoed five public bills: the Judges Bill (1692), the Royal Mines Bill (1692), the Triennial Bill (1693), the Place Bill (1694) and the Qualifications Bill (1696). George IV argued that his granting of Royal Assent to the Roman Catholic Relief Act 1829 would violate the commitments of his coronation oath to preserve the settlement of the Church of England but was persuaded otherwise by his ministers; and George V took legal advice over his discretion on the Government of Ireland Act 1914 if H.H. Asquith’s administration used the Parliament Act 1911 to secure its passage against the opposition of the House of Lords, but was similarly dissuaded. A monarch unilaterally withholding Royal Assent is now unthinkable.

The reason I raise the process of Royal Assent at all—except that I’m that sort of person—is because it has changed significantly over the centuries due to circumstances you might not expect. Until 1542, Royal Assent had to be granted by the monarch in person, from the throne in the House of Lords, and during the ceremony the entire text of the bill would be read aloud by the Clerk of the Crown in Chancery before the King indicated his approval. (This would have been challenging if it had applied to the Companies Act 2006, the longest statute Parliament has ever passed with 1,300 sections and 16 schedules.)

On 29 January 1542, a bill of attainder against Henry VIII’s fifth wife, Catherine Howard, was introduced into Parliament. This was a legislative device to declare someone guilty of a crime without the necessity of a trial and making provision for punishment, effectively sidestepping the judicial process altogether. Catherine had married the King in July 1540, but rumours quickly circulated that she was engaged in an affair with one of the Gentlemen of the Bedchamber, a young man called Thomas Culpeper, and that she had either been married or at least party to a pre-contract of marriage with Francis Dereham, a secretary to the Dowager Duchess of Norfolk, before she married Henry.

These accusations were revealed to the King in November 1541. Catherine was cross-examined by a group of Privy Counsellors led by the Archbishop of Canterbury, Thomas Cranmer, and initially confessed to a relationship with Dereham. Later she would deny there had been any pre-contract and insisted that Dereham had raped her. It was too late. On 23 November, she was stripped of the title of Queen and imprisoned at Syon Abbey in Middlesex. A week later, Culpeper and Dereham were put on trial for high treason at the Guildhall and found guilty. On 10 December, they were both executed at Tyburn, Culpeper beheaded while Dereham was hanged, drawn and quartered, after which both their heads were displayed on London Bridge.

The bill of attainder was intended to declare Catherine guilty of adultery which, in her former position as Queen, would constitute an act of high treason and thereby be a capital crime. It contained other provisions too, making it high treason for someone marrying the sovereign to conceal their sexual history, and for a third party to fail to disclose that sexual history, to incite another to have "carnal knowledge" of the Queen Consort, or of the wife of the monarch’s son, or for the Queen or Princess to incite somebody to do so. However, of necessity the text of the bill rehearsed Catherine’s adultery and would have to be read aloud in front of the King in the House of Lords.

This was not a scenario which attracted Henry, and consequently the Lord Chancellor, Lord Audley of Warden, advised the House of Lords that the King would not be able to attend to grant Royal Assent in person “lest the repetition of so grievous a story, and the recital of so infamous a crime, in the King’s presence, might reopen a wound already closing in the royal bosom”. To resolve this problem, a new clause was inserted into the bill which made provision for the appointment of Lords Commissioners who could communicate to Parliament the King’s Royal Assent by his Letters Patent under the Great Seal. The Royal Assent by Commission Act 1541 (a misleading title on several accounts) became law on 11 February 1542, and Catherine was beheaded two days later at the Tower of London. She was 18 or 19 years old.

There is an obvious procedural and legal lacuna here. The Royal Assent by Commission Act created the system for Royal Assent being granted without the presence of the monarch, but it also received Royal Assent by that same mechanism. Logically, given that Royal Assent is necessary to make a bill into law, the system of Lords Commissioners was not part of the law when it was first used. An attempt to square this circle was the wording of the legislation. The bill stipulated:

That the King’s Royal Assent by his Letters Patent under his Great Seal, and signed with his Hand, and declared and notified in his Absence to the Lords Spiritual and Temporal, and to the Commons, assembled together in the high House, is and ever was of as good Strength and Force, as though the King’s Person had been there personally present, and had assented openly and publickly to the same.

In other words, it tried to be retrospective, stating that the “new” procedure was not new at all but had always been valid, even if it had never been done.

There was an echo here of the Act in Restraint of Appeals 1532, the statute drafted by Thomas Cromwell which forbade appeals to the authority of the Pope on religious or other matters and asserted that the supreme legal authority was the King. To strengthen the case of this key part of the English Reformation, the preamble stated that the English crown as an imperial crown, that is, one which owed no allegiance to any higher jurisdiction, and that this had always been the case and recognised as such.

WHERE by divers sundry old authentick Histories and Chronicles, it is manifestly declared and expressed that this Realm of England is an Empire, and so hath been accepted in the World, governed by one supreme Head and King, having the Dignity and Royal Estate of the Imperial Crown of the same, unto whom a Body politick, compact of all Sorts and Degrees of People, divided in Terms, and by Names of Spirituality and Temporalty, been bounden and owen to bear, next to God, a natural and humble Obedience…

That same reinterpretation of the past was the basis for the Royal Assent by Commission Act and allowed it to become law by the Lord Chancellor exhibiting the Letters Patent to the Lords and Commons. It was very far from a watertight case, and in strict legal terms was clearly deficient, but Parliament had agreed to far more egregious measures over the preceding 10 years or so without demur or objection, and by 1542 had neither the strength nor the inclination to push back on what was, after all, a relatively minor procedural issue.

At that point, there was no clearly defined manner in which the Lords Commissioners were required to notify the House of Commons and House of Lords of Royal Assent. The only statutory requirements were that the Letters Patent had to be sealed with the Great Seal and bear the Royal Sign Manual, then notified to the Lords and the Commons when the two Houses were assembled in the House of Lords. Lord Audley had simply shown the Letters Patent to both Houses for that first instance, but when Royal Assent was next granted by commission in March 1544, the King entrusted the task to the Lord High Treasurer, the Duke of Norfolk.

It was, ironically, the attainder of that same Duke of Norfolk for which several Lords Commissioners seem to have been appointed for the first time. On 27 January 1547, the Lord Chancellor, Lord Wriothesley, the Lord President of the Council, Lord St John, the Lord Privy Seal, Lord Russell, and the Earl of Hertford were appointed as a Royal Commission, although some doubt exists over the validity of their appointment. Henry VIII died the day after the supposedly notified his Royal Assent and the death sentence in the attainder was never carried out, thereby saving the Duke of Norfolk’s life.

At this stage, it was still very much the normal practice for the monarch to grant Royal Assent in person, and the Royal Assent by Commission Act had never been intended as a revolutionary measure. The appointment of a Royal Commission remained rare until the middle of the 18th century, but the growth in legislation to 90 or 100 bills each session meant that it was becoming impractical for Royal Assent to be given by the King at the prorogation ceremony which ended each session of Parliament. It became more common, therefore, for a Royal Commission to be appointed a few days before prorogation to signify Royal Assent to the majority of bills, with a smaller number then passed by the King in person.

By 1800, the active involvement of the monarch in the legislative process was declining, with appearances largely restricted to the State Opening of Parliament and prorogation, and Queen Victoria, who succeeded to the throne in 1837, was even less involved. When the Queen gave Royal Assent in person at the prorogation ceremony on 12 August 1854, it was the last time it would occur (although there is nothing to stop the monarch even now attending Parliament to notify Royal Assent).

The only difficulty which remained with the process of notifying Royal Assent was that it had to take place in the House of Lords with members of both Houses present, and therefore interrupted the business of both Houses. Eventually this become sufficiently inconvenient and disruptive that Harold Wilson’s Labour government decided to overhaul the procedures. The Royal Assent Act 1967, which repealed the original act including Catherine Howard’s attainder, created a third method by which Royal Assent could be notified: the Speaker of the House of Commons and the Lord Chancellor (as Speaker of the House of Lords), or anyone acting in their stead, could simply announce the their respective Houses that a bill had been granted Royal Assent, only taking a moment at a convenient break in the proceedings. This is now the standard way of notifying Royal Assent, and it is done by Royal Commission only for those bills ready to receive Royal Assent at the prorogation of Parliament (for which a Commission is appointed anyway).

Taken without context, it would be perfectly understandable to see the changing methods of notifying Royal Assent as part of a gradual shift from personal monarchical government to a more modern bureaucratic state. On closer inspection, however, that process of modernisation, for want of a better word, was actually started so that Henry VIII didn’t have to listen to his young wife’s alleged infidelities being read out to England’s great and good while he sat in silence. It is often difficult to feel sympathy for Henry VIII, but, on this occasion, one can see why he was keen to avoid the experience.