The Veto

An astonishing rumour has been current of late. A certain section of the Unionist party is said to be encouraging the idea that it is possible, as a matter of practical politics, for the King to refuse the Royal Assent to the Home Rule Bill next May, when for the third time it has passed the House of Commons and has complied with all the requirements of the Parliament Act. … The danger may seem fanciful to many. It is impossible, it will be said, that so mad an idea could be entertained for a moment by responsible politicians. But it comes from Ulster, and though constitutional doctrine from Ulster requires very cautious acceptance just now, Ulster is strong in the councils of the party.

‘Auditor Tantum’, ‘The Veto of the Crown’, Fortnightly Review, Sept. 1913

In the last few weeks an increasingly abstruse but sometimes irritable debate has been generated around the possibility of royal assent being refused to a bill that has been passed against the will of Her Majesty’s Government. Even after Yvette Cooper’s European Union Withdrawal Bill did receive royal assent, on 8 April, the controversy continued to rumble on. Contributions to the debate have included those by Robert Craig in January ; Stephen Laws and Richard Ekins in February; Mark Elliott on 2 April in response to an article in the Daily Telegraph by John Finnis; a letter to the Times by Mark Elliott and others on 3 April; Richard Ekins on 5 April ; John Finnis on 8 April; Paul Bowen on 9 April. (It should be added that the debate has also encompassed the separate, but related, issue of the prerogative power to prorogue Parliament; and it should also be stated that the above list is far from exhaustive – I’m sure I’ve missed a number of contributions.) This blog is not intended to contribute to that debate, but to consider very briefly the history of the royal veto, or negative voice, the phrase more generally used before the mid-nineteenth century. There is no history of the royal veto, and much about it, and its use, remains pretty obscure.

The modern procedure of royal assent is a straightforward acceptance of a text presented as passed by both Houses of Parliament; but medieval kings treated the petitions they received as negotiable. The responses to petitions recorded in the Parliament Rolls before and even during the fifteenth century quite often use a version of the Norman French formula which became that for the veto (‘le roi s’avisera [or s’advisera]’), while explaining that the King would deal with the problem in his own way. Here’s an example from 1334 in which the King politely doesn’t respond directly to the request, for debts going back more than a century to be cancelled:

Le roi s’avisera par son tresorer des dettes queux sont clers et queux nient clers et sur les causes de les demandes entre cy et le proschein parlement, et lour ferra respons covenable. (The king will be advised by his treasurer of the debts which are clear and which are not clear and concerning the reasons for the demands between now and the next parliament, and he will give them a suitable answer.) From the Parliament Rolls of Medieval England, Feb. 1334

This sort of thing becomes much less common by the late fifteenth century, as the formal record, the Parliament Roll, suggests that petitions (or bills, as they are becoming) were generally either straightforwardly agreed to or vetoed, using the phrase ‘le roi s’avisera’, although a more negotiated form of acceptance survived into the reign of Henry VII. Unfortunately, the Roll soon afterwards drops the practice of recording bills to which the king had not assented, making it difficult to establish how commonly the veto was used. The Lords Journals (which exist from 1510) and the Commons Journals (from 1547) also rarely, if ever, record which bills had been agreed by the king and which vetoed, though they do often describe, rather oddly in such a context, the procedure for giving the royal assent. Such information as is available concerning vetoes, therefore, comes from other, fairly miscellaneous, sources, and means we can never be sure that we know the full extent of the exercise of the royal veto before the late seventeenth century. The fact that we know of far more bills vetoed in the reign of Elizabeth I than we do in the reigns of any of her Tudor predecessors may indicate that fewer were vetoed, or just that our sources are deficient. Only two bills are recorded as having been vetoed in the Lords Journal during the reign of Henry VIII, on 24 July 1540 concerning the Merchant Adventurers’ Company; and one of 29 March 1544 ‘de reservandis tenuris’. In addition, there are two from 1510 where a veto is recorded on the Original Act preserved in the Parliamentary Archives. Two vetoes are recorded in the five years’ reign of Edward VI, and three in the five years of Mary I; but Elizabeth I is known to have vetoed 72 bills during the 42 years of her reign. James I vetoed six (or possibly seven), all in the Parliament of 1624; and Charles I, remarkably, only vetoed a single bill, in 1628.

It would be wrong to assume that these were all – or even often – cases where the crown felt that Parliament was treading closely on its toes. Elizabeth I’s vetoes included bills relating to the bowyers of London, the law of bankruptcy, the protection of grain seed against birds, for the town of Shrewsbury, and a private bill concerning the rebuilding of Cringleford in Norfolk – versions of all of which passed in subsequent sessions. In many cases this probably indicates that opponents of the bills concerned had managed to persuade the king and his council (rightly or wrongly) that their promoters had failed to deal properly with their own objections and the two Houses of Parliament had casually accepted a result which was manifestly unfair. Which is not to say that some of these bills were clearly against the royal interest: they included a bill affecting the royal prerogative of purveyance (the crown’s ability to requisition goods for its own use) and bills affecting the church, always a matter of considerable concern for the Queen.

There is no evidence that the exercise of the veto as such aroused much concern before 1640; but not unnaturally, it became a key issue – perhaps the key issue – in the developing argument between Charles I and the Parliament elected in November 1640. With Parliament presenting him with a series of bills which the king believed to be inimical to his interests and his rights, the question of the veto was bound to come up sooner or later. His own adviser, the historian the earl of Clarendon, later suggested that the king might have wisely turned down a number of them, including the Triennial Act of 1641 (History of the Rebellion, III, 77-80). It was the attainder of his powerful minister, Thomas Wentworth, Earl of Strafford, that gave him most difficulty: having given every indication that he would refuse it, under enormous parliamentary and public pressure the king gave way with deep reluctance and assented to the bill authorising his execution. In August 1641, as the king made preparations to leave London to visit Scotland, both Houses made tentative efforts to get the king to authorise placing the royal assent into other hands, though these never progressed. A few months later, in February 1642, the king’s absolute refusal to agree to Parliament’s proposed legislation to place the militia into the hands of officers it trusted brought about a crisis in the relationship between them. Parliament started to rely on a much touted claim that the king’s coronation oath – a promise to abide by the laws ‘which the people have chosen’ (quas vulgus elegerit) – meant that the king had no right in conscience to veto bills, though the more honest argument was perhaps the practical one that in an emergency the safety of the people was the supreme law. The defeat of the king, his execution and the declaration of a Republic in 1649 resolved the argument, temporarily at least.

At the Restoration of the monarchy in 1660 an explicit rejection of the view that either House of Parliament had a right to legislate without the king was enshrined in statute (in the Treason Act of 1661). Charles II vetoed three bills in May 1662. It is tempting to think that he did so as a demonstration that the Crown still possessed the will to veto legislation passed by both Houses, but the evidence suggests that these vetoes were very similar to pre-Civil War ones: two were private bills, where there apparently remained some dispute between the parties concerned, and the third, on the office of register of sales and pawns, may have been attributable to lobbying by one interest against action by another. One of the private bills, though, was of considerable political significance: an act enabling the earl of Derby to recover some land which he had been forced to sell during the Interregnum as a result of financial problems which he claimed were the result of his support of the king’s cause. The veto was designed to prevent royalists from using their parliamentary strength to overturn legal protections for normal commercial activity; royalists regarded it as a weaselly exercise of royal power to disadvantage the very people who had been most loyal to the king. There are some indications, in fact, that the experience made the crown slightly more wary of using the veto. An odd incident in 1663, when a bill for the better observation of the Lord’s Day was apparently stolen from the clerk’s bag on the Table of the House of Lords on the morning of the day on which it was due to receive the royal assent, may indicate that it was thought preferable to prevent the bill being presented, rather than to veto it. There were two further exercises of the veto power during the reign of Charles II: one on another private bill in 1677, and finally, in 1678 on another Militia Bill – a striking indication of the sensitivity of the subject of the militia after what had happened thirty-six years before. There was much speculation about the possible use of the veto during the three years (1678-81) in which bills were debated to exclude the king’s brother, the future James II, from the throne on the grounds of his Catholic religion. The king either managed to have each of the bills suppressed in the Lords, or, in March 1681, prorogued Parliament before the House of Lords had had a chance to confront it directly. Another inconvenient bill, a measure repealing Elizabethan legislation against Protestant dissenters passed in January 1681, he dealt with by instructing the clerk of the Parliaments not to present it for the royal assent at all. An inquiry was held in the Commons at the beginning of the following session, to which the Clerk gave evidence:

that understanding the King came in his robes, he brought the bills: as he was bringing them, he met my Lord Falconbridge, who asked him how many bills he had; he told him four: he said he heard the King would pass but three of them; whereupon he went up to my Lord Chancellor, and told him what my Lord Falconbridge said. My Lord answered him, he did not know what the King would do, but he would ask him. The King bid him bring in the bills to the Prince’s lodgings to him: then the King took a certain Lord aside, and talked with him in a corner of the room; after which he came to the Clerk of the Parliament, and told him he would not pass the Bill of Repeal. Then the Clerk asked the King if he should write upon the Bill of Repeal the words the King uses, and which, it seems, are writ upon it when the King refuses a bill: the King said no, but that he should leave it there, and not bring it into the House to be offered.

The king’s prorogation of the session stopped both the exclusion bill and the Commons’ inquiry, which was highly likely to turn into a major confrontation. James II vetoed nothing, if only because his first and only Parliament lasted only a few months and was prorogued when it started to move into difficult territory.

Despite the actions of Charles II, and some voices raised in favour of the veto’s abolition, it survived the Revolution of 1689. Even though his title to the throne rested effectively on parliamentary approval (or perhaps because of it) William III proved to be a far more regular user of the veto than his recent predecessors. He vetoed one bill in 1692 (an attempt to limit the fees received by judges, in which William responded to the complaints of the judges); two in 1693 (one concerning the royal mines and another designed to limit the duration of Parliaments to three years); one in 1694 (which would have barred certain office-holders from sitting in the Commons); a private bill, in 1695; a bill concerning the conduct of elections in 1696; and a private bill in 1701. This use of the veto did not go unchallenged, though it may have been as much evidence of his inability to manage the parliamentary process by preventing unwelcome bills from being presented to him as of his own attitude to monarchical power or to his inexperience of government (although both were suggested at the time). The use of the veto in 1694 occasioned an angry debate in the House of Commons a few days later, culminating in two resolutions passed on 26 January 1694:

Resolved, That whoever advised the King, not to give the Royal Assent to the Act touching free and impartial Proceedings in Parliament, which was to redress a Grievance, and take off a Scandal upon the Proceedings of the Commons in Parliament, is an Enemy to their Majesties, and the Kingdom.

Resolved, That a Representation be made to his Majesty, humbly to lay before him, how few the Instances have been, in former Reigns, of denying the Royal Assent to Bills for Redress of Grievances; and the great Grief of the Commons for his not having given the Royal Assent to several publick Bills; and particularly to the Bill, intituled, An Act touching free and impartial Proceedings in Parliament, which tended so much to the clearing the Reputation of this House; after their having so freely voted to supply the publick Occasions.

There was also dismay at the veto of the bill to introduce a property qualification for Members of Parliament in 1696, although an attempt to pass a resolution similar to the first of the January 1694 ones was convincingly defeated.

The veto was probably becoming unsustainable by the end of William III’s reign for anything except private bills which had something wrong with them. Its solitary use by Queen Anne in 1708 on the Scottish Militia Bill, so often cited as the last time it was called on, was an odd and probably almost accidental event, still little understood. It was one of the first pieces of legislation relating to Scotland passed in the first session of the Union Parliament. Although the failure to establish a militia force in Scotland along the lines of that in England would later become a grievance among Scottish politicians and intellectuals, the abandonment of the proposal to do so in 1708 caused (as far as anyone has discovered so far) scarcely a ripple. Criticism of the bill during its passage by William Dalrymple may suggest that its abandonment was due to some concerns about possible reaction in Scotland to the details of the scheme, and as the veto coincided with news of the sailing of a French and Jacobite expeditionary force intended to foment rebellion, it was probably generally thought that it would have been dangerous to implement it.

Since 1708 the veto has never been employed in the legislatures of Great Britain or the United Kingdom, although there is a complex history of its use in the British colonies. In 1774, shortly before the outbreak of the American War, Thomas Jefferson, in A Summary View of the Rights of British America, urged the King to use it to ‘prevent the passage of laws by any one legislature of the empire, which might bear injuriously on the rights and interests of another’. The celebrated eighteenth century jurist William Blackstone merely noted (inaccurately, citing the Swiss political commentator De Lolme) in his Commentaries of the Laws of England that while the veto had previously been exercised frequently, the last time it was used was in 1692. The writer Thomas Gisborne wrote in 1795 a carefully balanced account of the veto, which recognised that it was regarded as ‘dormant’, and that while it was ‘indisputably constitutional’, it ‘would probably be attended, if exerted, with very general odium’.

Whether the public welfare might be promoted in some conceivable cases by the revival of the royal negative, would be a question which might give birth to a great variety of opinion. Yet it is clear, on the one hand, that in a free country the Chief Magistrate neither ought, nor would in fact find himself able, finally to refuse his assent to a measure proposed to him by the other branches of the Legislature, and permanently demanded by the voice of the nation. And on the other hand it is not to be denied, that the rejection of an obnoxious bill by a direct negative would be a measure far less injurious to the public good, than its defeat by secret and unconstitutional influence. The one step would at least be an open and manly exercise of a legal right; the other by its very concealment would betray the consciousness of guilt, and would tend in its effects to extinguish public spirit, to encourage future venality, and to subvert the foundations of national freedom. Thomas Gisborne, An Enquiry into the Duties of Men in the Higher and Middle Classes of Society in Great Britain (1795), I, 53-5.

Gisborne’s qualification reflected a contemporary concern with the issue of government influence within the legislature, and a sneaking feeling that there might be circumstances in which the veto could turn out to have its uses. A.V. Dicey referred to the veto as ‘practically obsolete’ in 1885, though he also hedged his bets, cautioning that his statement did ‘not involve the assertion that it could under no conceivable circumstances be revived’.

It was, very nearly, revived in 1914, in the crisis which provoked the article from which the quotation at the head of this blog is taken. The events of 1913-14 are complex, and in some respects remain disputed. They took place in the context of a series of confrontations – the rejection of the 1909 budget by the House of Lords, the 1911 Parliament Act, and the introduction by the Liberal government, supported by their Irish Party allies, of an Irish Home Rule Bill – that amounted to a rolling constitutional crisis. The bill was rejected in 1912 by the House of Lords, and was expected to become the first bill passed under the provisions of the Parliament Act, without the approval of the upper House. The Unionist party was prepared to accept home rule in the South of Ireland; but believed that its imposition on Ulster, where it was bitterly contested by Protestants and Unionists, whom they believed to form the majority, was illegitimate. Its leadership was murkily implicated in planning armed resistance in Ulster and in encouraging senior military officers to disrupt the government’s response, most notably in the Curragh incident in March 1914. At the same time, they were urging King George V to refuse royal assent to the bill on the grounds that the Parliament Act had radically changed the way the constitution now worked: so dramatic a change as home rule for Ireland ought to be put to the people in a general election, they argued, and with the House of Lords no longer able to force the government to do so, only the king’s veto could. The constitutional expert Sir William Anson (warden of All Souls’ College, Unionist MP for Oxford University and a former Unionist minister) argued in a letter to The Times that

The Government have taken advantage of a combination of groups in the House of Commons to deprive the Second Chamber of its constitutional right to bring about an appeal to the people on measures of high importance which have never been submitted to the consideration of the electorate. While this part of our Constitution is in abeyance they are pressing on legislation which will shortly lead to civil war. Our only safeguard against such disaster is to be found in the exercise of the prerogatives of the Crown. I am not ready to admit that, under such circumstances, these prerogatives have been atrophied by disuse. [Quoted by Vernon Bogdanor, The Monarchy and the Constitution (1997), p. 125.]

The king came under intense pressure from Unionist leaders. Arthur Balfour argued that just because the power to veto had not been exercised since 1708 did not mean that it was obsolete: ‘The contrary doctrine seems indeed absurd; since it would deprive the sovereign of every power which he does not habitually exercise. It is surely obvious that if a prerogative ought rarely to be used, it cannot become obsolete, merely because it is rarely used’ (ibid, p. 127). During a year of intense discussions with both government and opposition the king continued to entertain the possibility of either a veto, or dismissing the government. Ultimately, the First World War forced a postponement of the whole issue. The bill passed in September 1914, a month after the outbreak of War, accompanied by a second bill, suspending the operation of the Act until the War was over.

The veto has survived partly because, one imagines, for most of the time no-one thinks it worth spending any time doing anything about it; and partly perhaps because to remove it would take away the last real point of the monarchy, other than a means of avoiding the trouble of regularly choosing a head of state. As long as it arouses periodic controversy, it can scarcely be said to be obsolete, and it is not difficult to think of circumstances under which most people would regard it as a last, if desperate, defence of the rule of law (Mike Bartlett’s 2014 play, Charles III, dealt with one issue which suggests how difficult it might be to tell exactly what those circumstances are). Fortunately, it doesn’t look as if we are anywhere near that yet.

Further Reading

G.R. Elton, The Parliament of England 1559-1581 (1986)

C.E. Fryer, ‘The Royal Veto under Charles II’, English Historical Review, 32 (1917).

James Carafano, ‘William III and the Negative Voice’, Albion, 19 (1987).

Vernon Bogdanor, The Monarchy and the Constitution (1987)

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