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Constitutional scholar [[Ivor Jennings]] described the Queen-in-Parliament as "a purely formal body consisting of the Queen sitting on her Throne with the Lords of Parliament sitting before her and the Commons standing at the Bar."<ref name=”Jennings”>{{cite book |last1=Jennings |first1=Ivor |title=The Queen's Government |date=1967 |publisher=Penguin |pages=66-68 |url=https://archive.org/details/queensgovernment0000siri/page/n9/mode/2up}}</ref> This formal gathering was historically the only process by which legislation could be enacted. The [[Royal Assent by Commission Act 1541]] allowed [[Lords Commissioners]] to stand in for the monarch, and the [[Royal Assent Act 1967]] allowed legislation to be enacted by pronunciation, without a physical gathering. The assembling of the King, Lords, and Commons as the King-in-Parliament is now "notional rather than real",<ref name="Brazier">{{cite book | last=Brazier | first=R. | title=Constitutional Reform | publisher=Oxford University Press | year=1998 | isbn=978-0-19-876524-0 | url=https://books.google.ca/books?id=xRyQAAAAMAAJ | access-date=2024-04-06 | page=56}}</ref> only occurring ceremonially at the annual [[State Opening of Parliament]].<ref name=”Jennings” /><ref name="Adonis 1993 p. 3">{{cite book | last=Adonis | first=A. | title=Parliament Today | publisher=Manchester University Press | series=Politics today | year=1993 | isbn=978-0-7190-3978-2 | url=https://books.google.ca/books?id=iXu7AAAAIAAJ&pg=PA3 | access-date=2024-04-06 | page=3}}</ref>
Constitutional scholar [[Ivor Jennings]] described the Queen-in-Parliament as "a purely formal body consisting of the Queen sitting on her Throne with the Lords of Parliament sitting before her and the Commons standing at the Bar."<ref name=”Jennings”>{{cite book |last1=Jennings |first1=Ivor |title=The Queen's Government |date=1967 |publisher=Penguin |pages=66-68 |url=https://archive.org/details/queensgovernment0000siri/page/n9/mode/2up}}</ref> This formal gathering was historically the only process by which legislation could be enacted. The [[Royal Assent by Commission Act 1541]] allowed [[Lords Commissioners]] to stand in for the monarch, and the [[Royal Assent Act 1967]] allowed legislation to be enacted by pronunciation, without a physical gathering. The assembling of the King, Lords, and Commons as the King-in-Parliament is now "notional rather than real",<ref name="Brazier">{{cite book | last=Brazier | first=R. | title=Constitutional Reform | publisher=Oxford University Press | year=1998 | isbn=978-0-19-876524-0 | url=https://books.google.ca/books?id=xRyQAAAAMAAJ | access-date=2024-04-06 | page=56}}</ref> only occurring ceremonially at the annual [[State Opening of Parliament]].<ref name=”Jennings” /><ref name="Adonis 1993 p. 3">{{cite book | last=Adonis | first=A. | title=Parliament Today | publisher=Manchester University Press | series=Politics today | year=1993 | isbn=978-0-7190-3978-2 | url=https://books.google.ca/books?id=iXu7AAAAIAAJ&pg=PA3 | access-date=2024-04-06 | page=3}}</ref>


The composition of the King-in-Parliament is reflected in the [[enacting clause]] of acts of Parliament: "{{smallcaps|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..." The phrasing is different when the bill is passed under the provisions of the [[Parliament Acts 1911 and 1949]], without the consent of the House of Lords.
The composition of the King-in-Parliament is reflected in the [[enacting clause]] of acts of the British Parliament with: "{{smallcaps|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...", and in Canadian acts of Parliament: "{{smallcaps|Now, therefore}}, His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows...".


===Balance of power within the King-in-Parliament===
===Balance of power within the King-in-Parliament===
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Section 17 of Canada's [[Constitution Act, 1867]] establishes the [[Parliament of Canada]] as the legislative authority for the country, defining it as consisting of "the Queen [or King], an Upper House styled the Senate, and the House of Commons." This three-part composition is "along the lines of the British model of legislative sovereignty vesting in the Queen-in-Parliament".<ref>{{cite web |last1=Newman |first1=Warren J. |title=Some Observations on the Queen, the Crown, the Constitution, and the Courts |url=https://www.constitutionalstudies.ca/wp-content/uploads/2019/08/04_Newman.pdf |website=Centre for Constitutional Studies |access-date=6 April 2024}}</ref>
Section 17 of Canada's [[Constitution Act, 1867]] establishes the [[Parliament of Canada]] as the legislative authority for the country, defining it as consisting of "the Queen [or King], an Upper House styled the Senate, and the House of Commons." This three-part composition is "along the lines of the British model of legislative sovereignty vesting in the Queen-in-Parliament".<ref>{{cite web |last1=Newman |first1=Warren J. |title=Some Observations on the Queen, the Crown, the Constitution, and the Courts |url=https://www.constitutionalstudies.ca/wp-content/uploads/2019/08/04_Newman.pdf |website=Centre for Constitutional Studies |access-date=6 April 2024}}</ref>

Canadian acts of Parliament contain the following enacting clause: "{{smallcaps|Now, therefore}}, His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows..." Other Commonwealth parliaments, including the [[Parliament of Tuvalu]] and the provincial [[Parliament of Quebec]], simply state that the enactment is done by "parliament".{{citation needed|date=November 2023}}


Legal scholar [[Paul McHugh (legal scholar)|Paul McHugh]] describes both Canada and New Zealand as having "a crisis of constitutional identity" in the later 20th century, finding "the old [[Whiggism|Whig]] narrative of an absolute sovereign self (the Crown in Parliament)" to be inadequate. The Canadian response was to "not seek to refurbish a historical order so much as to fundamentally reorder it by adopting the Charter of Rights and Freedoms limiting the power of government, the Crown in Parliament (federal and provincial) included."<ref name="McHugh">{{cite journal |last1=McHugh |first1=P.G. |title=Tales of Constitutional Origin and Crown Sovereignty in New Zealand |journal=University of Toronto Law Journal |volume=52 |issue=Winter, 2002 |page=69}}</ref> By contrast, in New Zealand, the response was "[i]nstead of limiting an almighty Crown in Parliament, it reconstituted that Parliament on an electoral model of proportional representation."<ref name="McHugh" />
Legal scholar [[Paul McHugh (legal scholar)|Paul McHugh]] describes both Canada and New Zealand as having "a crisis of constitutional identity" in the later 20th century, finding "the old [[Whiggism|Whig]] narrative of an absolute sovereign self (the Crown in Parliament)" to be inadequate. The Canadian response was to "not seek to refurbish a historical order so much as to fundamentally reorder it by adopting the Charter of Rights and Freedoms limiting the power of government, the Crown in Parliament (federal and provincial) included."<ref name="McHugh">{{cite journal |last1=McHugh |first1=P.G. |title=Tales of Constitutional Origin and Crown Sovereignty in New Zealand |journal=University of Toronto Law Journal |volume=52 |issue=Winter, 2002 |page=69}}</ref> By contrast, in New Zealand, the response was "[i]nstead of limiting an almighty Crown in Parliament, it reconstituted that Parliament on an electoral model of proportional representation."<ref name="McHugh" />

Revision as of 18:07, 10 April 2024

Queen Victoria Opening Parliament, 1845, by Alexander Blaikley. The Queen-in-Parliament comprises "the Queen sitting on her Throne with the Lords of Parliament sitting before her and the Commons standing at the Bar."[1]

In the Westminster system, the King-in-Parliament (Queen-in-Parliament during the reign of a queen) is a constitutional law concept used within Commonwealth realms that refers to the monarch in their legislative role, acting with the advice and consent of the parliament (including, if the parliament is bicameral, both the lower house and upper house).[2][3][4] Bills passed by the houses are sent to the sovereign or their representative (such as the governor-general, lieutenant-governor, or governor), for royal assent in order to enact them into law as acts of Parliament. An Act may also provide for secondary legislation, which can be made by executive officers of the Crown such as through an order in council.[5][6]

Fusion of powers

The concept of the Crown as a part of parliament is related to the idea of the fusion of powers, meaning that the executive branch and legislative branch of government are fused together. This is a key concept of the Westminster system of government, developed in England and used in countries in the Commonwealth of Nations and beyond. It is in contradistinction to the idea of the separation of powers. The specific language of "the Crown", "the King", or "the Queen" in parliament used in the Commonwealth realms also alludes to the constitutional theory that ultimate authority or sovereignty rests with the monarch, but is delegated to elected or appointed officials.

In Commonwealth realms that are federations, the concept of the King in parliament applies within that specific parliament only, as each sub-national parliament is considered separate and distinct from each other and from the federal parliaments (such as Australian states or the Canadian provinces).

Parliamentary sovereignty

Opening of Parliament by Henry VIII at Bridewell Palace in 1523
Main article: Parliamentary Sovereignty

Parliamentary sovereignty is a concept in the constitutional law of Westminster systems that holds that Parliament (i.e. the monarch and legislative houses) have absolute sovereignty and is supreme over all other government institutions, a concept that had developed by the mid-16th century where it was established that the "King in Parliament" held supreme legislative authority in England.[7] However, this phrase was subject to two competing theories of interpretation,[7][8][9] where one view held that "king in parliament" meant the monarch ultimately exercising his own sovereign authority with the consent of the Lords and Commons,[8] while the other view held that this concept meant instead that a new composite institution (the King, Lords, and Commons acting together) was created and known as the parliament.[8] As described by Jeffrey Goldsworthy, the "question that divided them was whether [the] final, unchallengeable decision-maker was the king alone, or the King, Lords, and Commons in parliament."[7] The dispute had implications for the ability of the Lords and Commons to limit the monarch’s powers, or "the supremacy of the King in Parliament over the King out of Parliament."[10] The clash between these two views continued through the 16th century and much of the 17th, and was a factor in the English Civil War (1642-1651) and the execution of Charles I (1649).[8][11]

What came to be known as the parliamentarian position ultimately prevailed with the Glorious Revolution (1688-89) and subsequent passing of the Bill of Rights 1689, which significantly limited the day-to-day powers of the monarch, including removing prerogative powers to unilaterally suspend or dispense with statues.[12]

Composite body

Queen Anne in the House of Lords, c. 1708–1714, by Peter Tillemans

According to constitutional scholar A.V. Dicey, "Parliament means, in the mouth of a lawyer (though the word has often a different sense in ordinary conversation), the King, the House of Lords, and the House of Commons; these three bodies acting together may be aptly described as the 'King in Parliament,' and constitute Parliament."[13] Legal philosopher H. L. A. Hart wrote that the Queen-in-Parliament is “considered as a single continuing legislative entity”.[14]

Constitutional scholar Ivor Jennings described the Queen-in-Parliament as "a purely formal body consisting of the Queen sitting on her Throne with the Lords of Parliament sitting before her and the Commons standing at the Bar."[1] This formal gathering was historically the only process by which legislation could be enacted. The Royal Assent by Commission Act 1541 allowed Lords Commissioners to stand in for the monarch, and the Royal Assent Act 1967 allowed legislation to be enacted by pronunciation, without a physical gathering. The assembling of the King, Lords, and Commons as the King-in-Parliament is now "notional rather than real",[15] only occurring ceremonially at the annual State Opening of Parliament.[1][16]

The composition of the King-in-Parliament is reflected in the enacting clause of acts of the British Parliament with: "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...", and in Canadian acts of Parliament: "Now, therefore, His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows...".

Balance of power within the King-in-Parliament

2023 State Opening of Parliament

The concept of the King-in-Parliament holding supreme legislative authority is a core tenet of the Constitution of the United Kingdom.[17] As a concept, legislative authority being exercised by the King-in-Parliament is compatible with different distributions of power among its three components.[7][18] This allowed for increasing limitations on the monarch’s influence by Parliament over the 18th and 19th centuries.[19] The Parliament Acts 1911 and 1949 allow money bills to be passed against the wishes of the House of Lords, but such legislation can still be understood in a constitutional sense to be an act of the King-in-Parliament, that is by the King, Lords, and Commons acting jointly.[20]

Rules and procedures

In order to act as the King-in-Parliament, the individual components must act according to their established rules and procedures. The individuals involved must be "constituted as a public institution qua Parliament (on the basis of some rules and under certain circumstances)" in order to "[enjoy] the power to legislate as 'the Queen in Parliament' i.e., the ultimate legislature."[21] This creates a potential paradox when determining Parliament’s ability to modify its own rules or composition.[21]

Other parliaments

King George VI, accompanied by Queen Elizabeth, grants royal assent to laws in the Canadian Senate, 19 May 1939

Many Commonwealth countries have parliaments based on the Westminster model.

Section 17 of Canada's Constitution Act, 1867 establishes the Parliament of Canada as the legislative authority for the country, defining it as consisting of "the Queen [or King], an Upper House styled the Senate, and the House of Commons." This three-part composition is "along the lines of the British model of legislative sovereignty vesting in the Queen-in-Parliament".[22]

Legal scholar Paul McHugh describes both Canada and New Zealand as having "a crisis of constitutional identity" in the later 20th century, finding "the old Whig narrative of an absolute sovereign self (the Crown in Parliament)" to be inadequate. The Canadian response was to "not seek to refurbish a historical order so much as to fundamentally reorder it by adopting the Charter of Rights and Freedoms limiting the power of government, the Crown in Parliament (federal and provincial) included."[17] By contrast, in New Zealand, the response was "[i]nstead of limiting an almighty Crown in Parliament, it reconstituted that Parliament on an electoral model of proportional representation."[17]

References

  1. ^ a b c Jennings, Ivor (1967). The Queen's Government. Penguin. pp. 66–68.
  2. ^ House of Commons Library. "Chapter 5: The King in Parliament" (PDF).
  3. ^ A Crown of Maples. Government of Canada. 2015. p. 16. ISBN 978-1-100-20079-8.
  4. ^ Twomey, Anne (2016). Parliament, the Executive and ViceRegal Reserve Powers: Heading Off Crises in a Closely Tied Parliament. Parliament of Australia.
  5. ^ Office, Privy Council (13 December 2017). "Guide to Making Federal Acts and Regulations". www.canada.ca. Retrieved 10 April 2024.
  6. ^ "Meetings & Orders". Privy Council. Retrieved 10 April 2024.
  7. ^ a b c d Goldsworthy, J.D. (2000). "Chapter 2: The Development of Parliamentary Sovereignty". In Dickinson, H.T.; Lynch, M. (eds.). The Challenge to Westminster: Sovereignty, Devolution and Independence. Tuckwell. pp. 12–21.
  8. ^ a b c d Goldsworthy, J.D. (1999). The Sovereignty of Parliament: History and Philosophy. The Sovereignty of Parliament: History and Philosophy. Clarendon Press. p. 9, 53, 65-69. ISBN 978-0-19-826893-2. Retrieved 6 April 2024.
  9. ^ Edlin, Douglas E. "Rule Britannia". University of Toronto Law Journal. 52 (Summer, 2002): 313.
  10. ^ Phillips, O.H.; Jackson, P. (1987). Constitutional and Administrative Law. Sweet & Maxwell. p. 45. ISBN 978-0-421-35030-4.
  11. ^ Davis, Louis B.Z. "Review of the Fundamentals: The Source of the Government's Authority and the Justification of Its Power, in Terms of Constitutional Morality". Journal of Parliamentary and Political Law. 8 (August, 2014): 489.
  12. ^ Horsman, Karen; Morley, Gareth (2023). "§ 1:3. The Development of the English/British Monarchy". Government Liability: Law and Practice. Thomson Reuters.
  13. ^ Dicey, A.V. (1915). Introduction to the Study of the Law of the Constitution (8th ed.). London: Macmillan. p. 3.
  14. ^ Hart, H.L.A. (1972). The Concept of Law. Clarendon law series. Clarendon Press. p. 66. Retrieved 6 April 2024.
  15. ^ Brazier, R. (1998). Constitutional Reform. Oxford University Press. p. 56. ISBN 978-0-19-876524-0. Retrieved 6 April 2024.
  16. ^ Adonis, A. (1993). Parliament Today. Politics today. Manchester University Press. p. 3. ISBN 978-0-7190-3978-2. Retrieved 6 April 2024.
  17. ^ a b c McHugh, P.G. "Tales of Constitutional Origin and Crown Sovereignty in New Zealand". University of Toronto Law Journal. 52 (Winter, 2002): 69.
  18. ^ Fenwick, H.; Phillipson, G.; Williams, A. (2020). Text, Cases and Materials on Public Law and Human Rights. Taylor & Francis. ISBN 978-1-135-07133-2. Retrieved 6 April 2024.
  19. ^ Rowe, Malcolm. "The History of Administrative Law". Canadian Journal of Administrative Law & Practice. 34 (March, 2021): 87.
  20. ^ Ekins, Richard; Gee, Graham (2022). "Ten Myths about Parliamentary Sovereignty". In Horne, A.; Thompson, L.; Yong, B. (eds.). Parliament and the Law. Hart Studies in Constitutional Law. Bloomsbury Publishing. p. 299. ISBN 978-1-5099-3411-9. Retrieved 6 April 2024.
  21. ^ a b Eleftheriadis, Pavlos. "Parliamentary Sovereignty and the Constitution". Canadian Journal of Law and Jurisprudence. 22 (July, 2009): 267.
  22. ^ Newman, Warren J. "Some Observations on the Queen, the Crown, the Constitution, and the Courts" (PDF). Centre for Constitutional Studies. Retrieved 6 April 2024.
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