Saturday, 31 July 2010

No - the Queen did not have power to veto the Abortion Act 1967

The Queen had no power to veto the Abortion Bill 1967.

Her vetoing power, by refusing royal assent, is only permitted by law in the rarest of circumstances such as a constitutional crisis.

It is true that the Queen meticulously keeps up with the business of Parliament so that, in theory, if there ever were a constitutional crisis, she would be ready and properly advised to act, if necessary.

The Queen usually signs Letters Patent which allow the Speakers of the two Houses to announce the royal assent. However, she signs them for a whole lot of bills in one go, and is only given a list of the names of the Bills, not the texts or even the long titles.

She thus does not know the details of the Bills she is "assenting" to and is not expected to. That is because the process of assent, save in the rarest of situations such as a constitutional crisis, is now not much more than a ceremonial ritual.

The Queen is not even given a copy of the Bills and neither is the Palace. That is not just because she knows that both Houses of Parliament will already have considered the Bill very carefully but rather because she has no power to veto any of the Bills, save in constitutional emergency.


Sir Thomas Erskine May, 1st Baron Farnborough, the original author of Parliamentary Practice


The proper constitutional authorities are the courts and Parliament and the authoritative text is Erskine May's Parliamentary Practice.

The procedure is set out here:

http://www.publications.parliament.uk/pa/ld/ldcomp/ldctso56.htm


and here

http://www.francisbennion.com/word/fb/1981/1981-011-royal-assent-procedure.doc

You will see that Francis Bennion describes the most common procedure (i.e. by notification under the Royal Assent Act 1967) at page 5 of 11. The Queen signs a general assent for a whole series of Bills at one time.

But says, Bennion:

"It is a striking illustration of the extent to which Royal Assent has become a mere formality that Her Majesty does not have before her the texts, or even the long titles, of the Bills to which she signifies assent. Indeed these are not even communicated to officials of the Queen's Household (colloquially known as the Palace)".


Bennion also confirms what is now the law:

"There is no power to withhold a Bill from Assent, whether on the instructions of the Government or anyone else.{See Erskine May Parliamentary Practice (19th edn.) p. 562: "from that sanction they cannot be legally withheld"}. Nor, under the modern constitutional convention, may the Queen refuse Assent. {The last time Assent was refused was by Queen Anne in 1707, in relation to a Scottish militia Bill (Lords' Journals (1705 1709) p.506).}...One of the strengths of Britain's unwritten constitution is the reserve power it contains. In a near revolutionary situation the occasion might still arise for the withholding of Royal Assent, if only by way of delaying tactics". [emphasis added]

Thus, in a dire emergency, the Queen's reserve power to refuse assent is permitted by law to save the Constitution and country and in a few other very rare situations, but not otherwise.


Professor Vernon Bogdanor, leading constitutional expert from Oxford University


Professor Vernon Bogdanor's, The Monarchy and the Constitution, 1995, pp 131-132, gives an interesting insight into the discussions regarding the Home Rule Bill which King George V was very much opposed to:

"There is, then, no doubt that the king believed that he could veto legislation, and that he contemplated doing so in the case of Home Rule...the first parliamentary counsel, Sir Granville Ram...cited Dicey, who had declared of the refusal of assent: ‘Its repose may be the preservation of its existence, and its existence may be the means of saving the Constitution itself on an occasion worthy of bringing it forth’. The Home Rule crisis of 1914 proved that the sovereign retained the prerogative of veto, and that this prerogative might come into play on extreme occasions." [emphasis added]

The position adumbrated by Dicey is more or less the position today, as the authorities like Erskine May and Francis Bennion QC state.

We might call this "Dicey's exception".


Albert Venn Dicey (1835-1922)
was a leading constitutional lawyer
and Vinerian Professor of English Law at Oxford University from 1882 to 1909


Now, if the Queen were to refuse letters patent then she would be attempting to usurp to herself the power to veto a Bill - a power which the law and Constitution do not allow her.

And attempting to usurp or seize power unlawfully is a sin and we may not do evil that good may come of it, as St Paul teaches us (Rom 3:8), no matter how great the intended good may be.

It is not simply a matter of the Queen refusing to obey an unjust law. It is far more.

Any attempt by her to veto a Bill would be an attempted seizure of power by the Monarch, like the US President giving himself power to sack pro-abortion US Justices, a power he does not have under the US Constitution.

Once the US Senate confirms the nomination of a US Justice by an affirmative vote, the President must prepare and sign a commission, and have the Seal of the Department of Justice affixed to the document before the new justice can take office (see 5 USC § 2902).

The seniority of an Associate Justice is based on the date of commissioning, not the date of confirmation or swearing-in (see 28 USC § 4).

No-one would ever realistically suggest that the US President should refuse to sign the commission for any duly confirmed Justice, break the law, breach the Constitution which he is pledged to defend, and seize powers that he does not have (a coup d'etat), on the entirely spurious basis that he, the President, is morally compelled to do so in the name of over-turning Roe v Wade, the US Supreme Court decision that liberalised abortion law in the USA, and to stage a revolution in the name of the pro-life cause.


The US Supreme Court


Revolution in the name of the pro-life, or any just, cause cannot be justified, and the whole weight of Catholic tradition and teaching on the subject is against it.

The position is summarised by St Thomas in De Regimine Principum, Ch. 6, 45-52, when he writes of the opinion that the unjust ruler may be overthrown by private force:

"But this opinion is not in accord with apostolic teaching, for Peter [1 Pet 2:18-19] admonishes us to be reverently subject to our masters, not only the good and gentle but also the froward...to proceed against the cruelty of tyrants is an action to be undertaken not through the private presumption of a few..."


Revolution and revolt against legitimate authority is never permissible and always wrong


In the British Constitution the true sovereign power lies with Parliament.

Even though the Queen is called the Sovereign, in truth, most of the time, she isn't, save for Dicey's exception.

To attempt to give herself the sovereign power to veto a Bill would be the act of a private citizen, Elizabeth Windsor-Mountbatten, attempting to seize power and overthrow the sovereign power of Parliament.

That would be the sin condemned by St Peter and St Thomas and one may not sin in order to achieve good, as St Paul teaches (Rom 3:8).

We should blame the real villains for the Abortion Act 1967: the politicians, not the Queen!



St Thomas Aquinas, jurist, philosopher, theologian, scholar, saint and Doctor of the Roman Catholic Church


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19 comments:

aaronandbrighid said...

Is there any idea what the Queen believes personally about abortion? I'd like to think she's not in favour of it, but I'm afraid that could be wishful thinking!

Anita Moore said...

Very lucid explanation of the limits on the Queen's power. However, the analogy to the President of the United States refusing to install a Supreme Court justice upon Senate confirmation is not an entirely happy one, since it is the President himself who nominates the candidate for the Court, and the President can always withdraw the nomination, at least up to the point the nominee is confirmed. If he doesn't withdraw the nomination, it wouldn't make sense for the President to try and stop the nominee from taking his seat on the Court once confirmed.

It's tough to draw parallels between the Prez and the Queen, because, while both are heads of state, the Prez is also the head of the Government and wields powers the Queen does not have (unfortunately for us, in the case of the present occupant of the Oval Office). I guess possible American examples of what you're talking about would be the refusal of a secretary of state (that is, of one of the 50 States) to certify the results of an election in order to keep a duly elected candidate from taking office, or the refusal of the Chief Justice of the United States to swear in as President the candidate who won the greatest number of votes in the Electoral College (as opposed to the popular vote).

Roger Buck said...

I regret that in very demanding circumstances, that I am not finding time to give this very meaningful rich and intelligent blog the attention it most certainly deserves.

I will rectify when I can ...

Matterhorn said...

Dear Sir,

This is clearly a difficult dilemma, but couldn't one make this argument: that the most basic purpose of any constitution, of law itself, is to protect the innocent, such as unborn children clearly are. Therefore, could not the abortion crisis be one of those rare occasions when something so fundamental is at stake that the monarch would be justified in withholding assent- to save the Constitution, the rule of law and the country itself? When we start allowing mothers to murder their children, where will it end? If even a child cannot trust a mother, what is to prevent the rest of society, the whole political community, from unraveling? Surely the monarch has an obligation to take a stand against this?

Anonymous said...

She could have abdicated.

Ma Tucker said...

So the Queen must given her assent to a bill that permits the slaughter of her own subjects. She does however reserve a veto in the case where there is a constitutional crisis involving a constitution that is unwritten in the first place. I do not understand. How can you determine whether a situation constitutes a constitutional crisis when the constitution itself is unwritten? Reading your post I get the impression that the queen's role is defunct. It has been reduced to nothing at all. Did the labour government consider whether signing the Lisbon Treaty would represent a threat to the unwritten constitution? Did the queen? It would seem to me that home rule would be rather less serious than the Lisbon treaty in this regard.

Other issues I would like to know
Had she refused to give her assent would the parliament have the power to unseat her? Would they be compelled to do so if they had that power? Could they not charge her with treason and execute her? I know very little about your parliamentary system but from what you've written it seems to me that the queen's role is as powerful as it needs be to safeguard the will of the parliament regardless of whether that parliament safeguards the will or indeed more importantly the life of the people over whom that parliament governs.

Also, I have read other posts from you Tribunus. In particular the attempted execution of Adolf Hitler. Did Hitler's government not represent legitimate authority? Was it an act of revolution to attempt his assassination?

Alexander said...

Sorry this is totally off topic -

but been reading Catholic blogs on nuclear attacks on Japan, yours came up and you brought up points - maybe you addressed this but I missed it - and couldn't see an email to contact you so here's my post and question to you:

Is not the British night carpet bombing of German cities just as atrocious as the USAAF's atomic bombs? (their fire bombing of Toyko actually killed more than both atomic bombs combined btw)Especially considering how RAF would just target cities in general not even bothering to aim at strategic sites. Look at the firestorms of Dresden and Hamburg. Technology lacking is the argument brought up in defence of the practice, how can that regardless be morally right?

Jon said...

Bah!

The US president is the one who nominates the Justice in the first place, and then sends the nomination to the Senate for confirmation - which it may refuse.

The Queen SHOULD have refused her assent. She SHOULD have reasserted the inherent power of her position, which her predecessors clearly held, and has only lain dormant through disuse. NO LAW forbids her from doing so, only custom.

The Queen SHOULD have refused her assent, and the lives of MILLIONS of innocent children would've been saved thereby.

Bah!

Anonymous said...

Maybe she didn't have the power to veto it, but she could have still refused to sign, because signing it was a form of cooperation in grave evil, and a betrayal of the rights of her unborn subjects.

If the Abortion Act would still have gone through without her signature, then she need not have signed. She could have explained that she was not trying to usurp any power which she did not enjoy constitutionally, but that she wasn't prepared to go against her own conscience.

Her signature gave the impression that she supported this law. Any prosecutions under this law or its predecessors would have been in the form: Regina v. N. giving the impression that the Queen supported whatever law was in force.

King Baudouin of the Belgians showed far more integrity when he resigned from the monarchy for a day, rather than play any part in an abominable law.

I don't think your argument holds water. This was one case where a Christian monarch could have registered a protest. Maybe it wouldn't have made a lot of difference at the time, but it would be something forever remembered.

""To veto" is not the same as "not to sign." You are equating the two.

best wishes
Fr Francis Marsden
Chorley, Lancs

Tribunus said...

Dear aaron and brighid,

I would be extremely surprised if the Queen was in any way in favour of abortion.

Tribunus said...

Thanks Anita and Roger!

Tribunus said...

Dear Matterhorn,

You ask: "...The most basic purpose of any constitution, of law itself, is to protect the innocent, such as unborn children clearly are. Therefore, could not the abortion crisis be one of those rare occasions when something so fundamental is at stake that the monarch would be justified in withholding assent- to save the Constitution, the rule of law and the country itself... Surely the monarch has an obligation to take a stand against this?"

If you could show that the Monarch had the power to do what you suggest then it follows, as night follows day, that she would be morally obliged to exercise it in a way that defends human life.

However, she does not have that power.

This is because the UK Constitution is governed by constitutional conventions and those conventions bind the Monarch as much as anyone - and binds them both legally and morally.

One of those conventions is that the Queen may not veto a Bill that is not a technically constitutional Bill (as regarded by the English courts e.g. Laws LJ in the Sunderland case) and, moreover, one that falls into the very few extremely dire situations that may be called "Dicey's exception".

The Queen is not empowered to extend the parameters of that convention. Only the courts and Parliament can do so.

The proof that the Abortion Act is not such a Bill is that the Bill has become law and the British Constitution has not disappeared or fallen.

We still have all the organs of state.

It is really only if their very existence is threatened that the Queen might be empowered to stop it.

It would be nice if the Queen had power to stop the Abortion Bill - but she doesn't.

Tribunus said...

Anonymous:

Why should anyone quit for not exercising a power they do not have?

There is as much likelihood of the Queen abdicating as there is of you using your brain cell.

Anita Moore said...

Ah, Tribunus! Glad to see you're back! I was hoping you'd surface soon!

Tribunus said...

Dear Ma Tucker,

The Queen doesn’t give her assent to the Bill because her assent is not a real assent save in very rare constitutional crises. That is British constitutional law – something you plainly are not an expert in.

She certainly does however reserve a veto in the case where there is a constitutional crisis involving a constitution that is unwritten. That is because our unwritten constitution is determined by constitutional conventions. Conventions are part of all constitutions, written or unwritten, but clearly less so for a written constitution.

Since you are clearly not a constitutional lawyer – still less a British constitutional lawyer – it may be that you do not understand this.

However, the British Constitution does not depend upon your inability to understand it.

Moreover, the fact that a constitution is unwritten does not mean that it cannot develop a crisis. In fact, this has happened a number of times with the British Constitution e.g. the hung Parliament in 1974, when the Queen invited Harold Wilson to form a government; the Abdication crisis, to name but two.

The Queen’s role is far from defunct in such situations and is certainly not “nothing at all”. In a crisis her position is vital to the preservation of stable parliamentary democracy.

The Lisbon Treaty may well be more serious a challenge to the Constitution than Home Rule but you have to reckon with cases like R v Secretary of State For Foreign & Commonwealth Affairs, Ex Parte Rees- Mogg (1993) and Blackburn v Attorney-General (1971) CA which indicate that such treaties can be agreed to, and can be later reversed, and are thus not unconstitutional.

As to your questions:

Parliament has no known power to unseat the Queen but that did not stop them doing so to King James II, nor the Americans doing so to King George III (at least in the American Colonies).

Would they be compelled to do so if they had that power?

Why compelled?

Could they not charge her with treason and execute her?

Treason against whom? Treason is an act against the Crown. It would be treason to execute her. Having said that, the two Houses of Parliament did so to King Charles I.

The Queen's role is as powerful as it needs to be to safeguard parliamentary democracy which might, conceivably, be different than the will of the House of Commons e.g. if the Commons sought to abolish elections.

More general human rights are (in theory) protected by the European Convention on Human Rights.

As to the attempted execution of Adolf Hitler, if you had read my post fully, you would have seen that I do not consider his government legitimate after the Reichstag Fire Act and the Enabling Acts, both of which were unconstitutional seizures of power. From that time on Hitler’s government lacked legitimacy and a just war of restoration could have been prosecuted against him, provided the other criteria, like proper authority to declare war and proportionality, applied.

Once he began to persecute Jews, a war became, in my opinion, proportionate and could have been declared by those genuinely representing the ousted Weimar Constitution e.g. illegally ousted Reichstag and Reichsrat members, illegally ousted public officials and cabinet ministers.

If the only way to stop the usurper was assassination – as increasingly it became clear was the case – then it became legitimate to attempt it.

These were the very discussions that Stauffenberg and his co-conspirators had before deciding to act. They were right to have them and to take them very seriously.

Tribunus said...

Dear Alexander,

Was not the British night carpet bombing of German cities just as atrocious as the USAAF's atomic bombs?

Yes, it was.

How can that regardless be morally right?

It can’t!

Tribunus said...

Dear Bah!

May I say that I am unimpressed by an argument that begins “bah!”.

It proves nothing.

The US president is indeed the one who nominates the Justice in the first place. He then sends the nomination to the Senate for confirmation - which it may refuse. But suppose the Senate confirms and then the candidate declares himself in support of something the President morally objects to? The President cannot then veto the appointment.

Your mere, unsupported assertion that the Queen should have refused assent does not give her the power so to do.

She does not have any constitutional power to refuse assent.

If you think she has then you do not understand British Constitutional law.

She does not have any “inherent power” of the sort you claim since that power does not now exist.

Law certainly does forbid it. That law is determined by constitutional conventions or, if you prefer, constiutional customs.

You are plainly ignorant of what St Thomas himself wrote about custom:

“Custom hath the force of law, abolishes law and is the interpreter of law” wrote St Thomas (ST I- II, q. 97, a. 3).

If the Queen had attempted to give herself power that she does not have i.e. veto over a Bill passed by both Houses of Parliament (save in a constitutional crisis) then she would have acted illegally, immorally (by seizing power) and for no good purpose since Parliament and the courts would not have accepted her purported veto of the Bill.

It would have been a futile gesture creating a pointless crisis.

You are pontificating about a subject on which you plainly know very little.

I therefore say to you:

Bah!

Tribunus said...

Fr Francis,

Forgive me if I answer you more publicly in a main post.

Trib.

Anita Moore said...

Fr. Francis, doesn't moral culpability require a free and unconstrained act of the will? If Tribunus is right, and the law did require the Queen to sign the bill, is she acting freely and voluntarily? And does her conduct (as distinct from Parliament's) really give scandal here, if she is in fact legally constrained?