Tuesday, April 22, 2008

Doing away with the Royal Assent

Last month, we passed a significant constitutional anniversary. Three hundred years ago, on March 11 1708, Queen Anne withheld her Assent from a bill "for the settling of Militia in Scotland". It was the last time it happened in our constitutional tradition. Since then (if not before, given that Anne acted on the advice of Ministers), no British monarch has withheld the assent from any bill passed by a democratically elected Parliament. Similarly, no Governor or Governor-General of New Zealand has ever refused to sign a law passed by our House of Representatives. Indeed, in New Zealand at least, the power may no longer even exist - but sadly, the myth still does. And that myth has proven itself to be constitutionally dangerous. After three hundred years of disuse, it seems time to finally put an end to it.

How would we do it? The same way we did it last time. When New Zealand set Niue free in 1974, we didn't think it was appropriate to have a New Zealand governor to oversee their laws the way we effectively have (still) a British one to oversee ours. So instead, Article 34 of the Niuean Constitution (as passed in schedule 2 to the Niue Constitution Act 1974) stipulated that a bill became law when:

(a) It has been passed by the Niue Assembly; and

(b) The Speaker, being satisfied that it has been passed in accordance with this Constitution and with the Standing Orders of the Assembly, has endorsed on a copy of the Bill a certificate of compliance with the requirements of this Article, and has, in the presence of the Clerk of the Niue Assembly, signed that certificate and sealed that copy with the Seal of Niue, and inscribed thereon the date of that signing and sealing; and

(c) The Clerk of the Niue Assembly has, in the presence of the Speaker, countersigned the certificate on that copy of the Bill.

(The qualifications in subclause (b) are because Niue has constitutional sovereignty, and so cannot legally pass legislation that is contrary to their constitution. (For now at least) New Zealand has Parliamentary Sovereignty, meaning that there are no such limits on legislation).

It would be a simple matter to replace the existing s16 of the Constitution Act 1986 (which declares that "A Bill passed by the House of Representatives shall become law when the Sovereign or the Governor-General assents to it and signs it in token of such assent") with one stating that bills become law when certified by the Speaker and the Clerk of the House as having been passed according to the House's Standing Orders, phrased in such a way as to make it clear that they must sign if satisfied (in order to prevent the fiction from shifting focus). That would end the monarchical fiction, bring our legislative procedures back in line with our democratic ideals, and also end the affront to our independence of having a representative of a foreign power confirming our laws.

Three hundred years of disuse is enough; it's time to end the absurdity. Does anybody want to bring a bill?