IIn 2002, when the Scottish Parliament was debating a bill to provide the public with an innovative new right to roam, independent MSP Dennis Canavan discovered a provision exempting the queen’s private property of Balmoral from this legal right. Canavan managed to remove this exemption, but why did the ministers write it in the first place? Don’t walkers who climb popular hills like Lochnagar deserve the same rights as those who climb any other hill in Scotland?
Since then, as The Guardian revealed this week, other laws of the Scottish Parliament have exempted the Queen’s personal property from the laws that apply to all other landowners in Scotland. At least 67 Scottish parliamentary bills have been scrutinized by the Queen over the past two decades, including legislation on planning laws, tenant protections and property taxes.
Those who were developing plans for the Scottish Parliament claimed that it would do things differently than Westminster. However, these revelations show that remnants of the archaic, opaque and secretive procedures that stem from and continue to operate in the UK legislature also apply in Scotland.
The monarchy and crown are part of the legislative apparatus of the United Kingdom. It was therefore inevitable that for the laws of the Scottish parliament to enjoy the same status as the laws of the UK parliament, similar constitutional conventions would have to apply. This is why the Queen’s consent requirement was built into Scottish Law. This procedure means that no bill can be debated in its final stage unless such consent (if necessary) has been obtained from the monarch.
According to the guidelines for lawyers drafting laws for the UK government, the consent of the queen is required not only when the bills affect the prerogative of the crown or the hereditary income of the crown, but also when they affect the “personal property or personal interests of the crown.”
It is not clear where this formulation of words came from, but it does not make sense. The crown is an institution and, by definition, it has no vested interests. But in practice, these words are interpreted as the monarch’s private property, such as Balmoral and Sandringham, and any personal interests of the royal house. No justification or explanation is given as to why this power should exist.
The queen has only been allowed to own land in a personal capacity since 1862, when a act of parliament he granted the monarch this privilege and established the rules governing this arrangement. In Scotland, your land must be held by trustees, for example. The queen cannot enjoy private property rights as a private citizen on the one hand, but on the other she has the right to demand exemptions from the rules governing all other landowners.
The most immediate problem is the lack of clarity and transparency in this legislative process. Despite the existence of this veto power and the Queen’s ability to demand amendments to exempt her private properties from the law, the MSPs are not told anything about whether and when such consent is required. There is no obligation to inform parliament that an amendment is being tabled at the Queen’s request to benefit her personal interests or to secure her consent.
This entire procedure directly violates the fundamental principles of openness and accountability of the Scottish Parliament. So what can be done? The procedure itself is a legal 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 property from Scottish law. If this means that the queen’s consent is refused, the ministers must go to parliament and make it known.
Second, the Scottish Parliament can take the lead. It cannot remove the legal requirement for Queen’s consent, but it can amend its procedures to require much greater transparency from ministers about what bills require it, when and under what conditions it has been granted, and (most critical for proposals legislative) full frankness about what parts of any subsequent bills or amendments are being tabled at the request of the Queen.
That an unelected head of state has the power to legislate for the benefit of his personal interests, without transparency or accountability, is contrary to democracy. The Scottish Parliament must take the lead in insisting on the openness and transparency that it so often claims to defend.
George is Digismak’s reported cum editor with 13 years of experience in Journalism