In 2002, as the Scottish parliament was debating a bill to provide the public with a groundbreaking new right to roam, the independent MSP Dennis Canavan spotted a provision that exempted the Queen’s private Balmoral estate from this statutory right. Canavan managed to remove this exemption – but why had ministers ever drafted it in the first place? Did walkers climbing popular hills such as Lochnagar not deserve the same rights as those climbing every other hill in Scotland?
Since then, as the Guardian revealed this week, other acts of the Scottish parliament have exempted the Queen’s personal estates from laws that apply to every other landowner in Scotland. At least 67 Scottish parliamentary bills have been vetted by the Queen over the last two decades, including legislation around planning laws, protections from tenants and property taxation.
Those developing plans for the Scottish parliament claimed that it would do things differently from Westminster. Yet these revelations show that remnants of the archaic, opaque and secretive procedures that derive from and continue to operate in UK legislature also apply in Scotland.
The monarchy and the crown are part of the legislative apparatus of the UK. It was therefore inevitable that if acts of the Scottish parliament were to enjoy the same status as acts of the UK parliament, similar constitutional conventions would need to apply. This is why the requirement for Queen’s consent was hard-wired into the Scotland Act. This procedure means that no bill can be debated at its final stage unless such consent (if required) has been obtained from the monarch.
According to guidance for lawyers who draft legislation for the UK government, the Queen’s consent is required not only when bills affect the crown prerogative or the hereditary revenues of the crown but also when it affects the “personal property or personal interests of the crown”.
It is unclear where this formulation of words came from, but it is nonsensical. The crown is an institution and has, by definition, no personal interests. But in practice these words are taken to mean the private property of the monarch, such as Balmoral and Sandringham, and any personal interests of the royal household. No justification or explanation is given for why this power should exist.
The Queen has only been allowed to own land in a personal capacity since 1862, when an act of parliament afforded the monarch this privilege and set down the rules governing this arrangement. In Scotland her land must be held by trustees, for example. The Queen can’t enjoy the rights to private property as a private citizen on the one hand, but on the other be entitled to require exemptions from the rules that govern all other landowners.
The most immediate problem is the lack of clarity and transparency over this legislative process. Despite the existence of this veto power and the Queen’s ability to demand amendments to exempt her private estates from laws, MSPs are told nothing about if and when such consent is required. There is no obligation to inform parliament that an amendment is being lodged at the request of the Queen to benefit her personal interests, or in order to secure her consent.
This whole procedure directly violates the Scottish parliament’s founding principles of openness and accountability. So what can be done? The procedure itself is a statutory requirement and any amendment or abolition requires action by the UK parliament. But two initiatives could be taken.
First, Scottish ministers should reject any request from the palace to exempt the Queen’s private estates from Scottish legislation. If this means that Queen’s consent is refused, then ministers should come to parliament and make that known.
Second, the Scottish parliament can take the initiative. It cannot remove the statutory requirement for Queen’s consent but it can amend its procedures to require far greater transparency from ministers about which bills require it, when and under what conditions it has been granted, and (most critically for legislative proposals) complete candour about which parts of any bill or any subsequent amendments are being lodged at the request of the Queen.
That an unelected head of state has the power to legislate in their personal interests, with no transparency or accountability, is antithetical to democracy. The Scottish parliament must take a lead in insisting on the openness and transparency it so often claims to champion.