Can the Queen refuse her assent to legislation?
Police Exchange, a constitutional think tank, has put forward a paper, Endangering Constitutional Government, by Sir Stephen Laws and Professor Richard Ekins, discussing the more active role currently being taken (or usurped) by Parliament in relation to Brexit, and suggesting that if legislation were to be passed by both Houses with which the government disagreed, the Queen might be urged to withhold the Royal Assent. The paper’s executive summary concludes:
“Legislation designed to usurp the Government’s functions should be blocked, in the first instance by relying on the House’s own procedures. If the Speaker were to subvert the normal rules, as events suggest he may well, the Government might legitimately prorogue Parliament, ending a session of Parliament prematurely to prevent a Bill from being passed by both Houses. Or the Government might legitimately treat its defeat as a matter of confidence by itself moving a motion under the Fixed-term Parliaments Act to trigger a general election. The process of Royal Assent has become a formality but if legislation would otherwise be passed by an abuse of constitutional process and principle facilitated by a rogue Speaker, the Government might plausibly decide to advise Her Majesty not to assent to the Bill in question: it would be MPs, not the Government, that had by unprincipled action involved the monarch.”
The paper was reported in the Sunday Times, but constitutional and human rights lawyers on Twitter did not welcome its suggestions.
There’s been quite a lot of crap written about the constitution recently. The idea the government could advise the monarch not to give the royal assent to a Bill otherwise validly passed is a standout piece of crap this morning.
— Charlie Falconer (@LordCFalconer) March 31, 2019
Policy Exchange and the Judicial Power project, having complained for years about judges undermine democracy, are suggesting the Queen should refuse to give royal assent to backbench bills. Unbelievable! https://t.co/lz3qoVzWsb
— Adam Wagner (@AdamWagner1) March 30, 2019
The Judicial Power Project has struck me as sinister for a long time. But this is something else … truly disturbing that legal academics from respectable institutions are involved with this crew.
— Dinah Rose QC (@Anisminic) March 31, 2019
In my view, the so-called "Judicial Power Project" of @Policy_Exchange is an Executive Power Project.
Against any limit to raw executive power, judicial or legislative.
No argument can be too strained, in the cause of unchecked executive power.
Back to the 1630s. https://t.co/v6lo1ccurD
— David Allen Green (@davidallengreen) March 31, 2019
There is an interesting conflict between two separate rules.
1. The Queen's follows advice of her ministers
2. Royal Assent is always given to Bills passing both houses.
What if ministers utterly disgraced themselves and recommended against 2? https://t.co/iAI2OCVBdL
— SpinningHugo (@SpinningHugo) March 31, 2019
The view reported on the front page of today's Sunday Times – that the Government could prevent Parliament from 'taking control' by getting the Queen to veto legislation – is, in my view, constitutionally flawed. My reasoning is set out in this post. https://t.co/HCCFSLwMOA
— Mark Elliott (@ProfMarkElliott) March 31, 2019
UPDATE. 2 April 2019.
On 1 April the constitutional lawyer Professor John Finnis QC published in The Daily Telegraph an article suggesting that Only one option remains with Brexit – prorogue Parliament and allow us out of the EU with no-deal (failing which, he supports the no Royal Assent suggestion).
In response to what he called that “misconceived” suggestion (which some on Twitter thought, respectfully, must have been an April Fool’s joke), Professor Elliott published another post on Public Law for Everyone, Brexit, the Executive and Parliament: A response to John Finnis
Incidentally, Oxford-based Finnis, a Catholic convert (they tend to be the most zealous) was in the news not long ago by reason of his publication at various times of militantly conservative opinions on sexual morality, in response to which Legal Cheek reported that Oxford University students launch petition calling for top law professor’s removal over alleged homophobia
Who next for Prime Minister? You decide.
Last week Theresa May made it clear that, if her third attempt to win a ‘meaningful vote’ on her Withdrawal Agreement succeeded, someone else could succeed as leader of the Conservative Party and, ineluctably, the government. But she failed, and has not yet been succeeded. However, this weekend has once again seen talk of a leadership challenge, with a number of top, or top-ish, Tories coming out as contenders. (This is usually expressed as ‘throwing their hats into the ring’, even though most of them don’t wear hats and there isn’t a ring to throw them in, though there is always the river or under a bus.)
— Sunday Mirror (@TheSundayMirror) March 30, 2019
Esther McVey signals she will run to succeed Theresa May in Tory leadership race
— Mike#FBPE (@mikeymike1) March 30, 2019
And now Chris Grayling throws hat into the ring. He’s at the circus.
— Adam Creme 📈 (@Adam_Creme) March 31, 2019
"The Conservative Party needs to remodernise. We need to be optimistic, aspirational. We need to participate in the battle of ideas." My interview in the ST.https://t.co/Ym8YoQ4GGJ
— Liz Truss (@trussliz) March 31, 2019
I'm throwing my hat into the ring for #Conservative #Leadership. I know that (a) you've never heard of me, (b) I'm #Labour and (c) I can't throw for toffee, but none of that seems to matter anymore. #BrexitShambles #Shazam4PM
— Shari, Shazam, Sharon (@auldyth) March 31, 2019
Elections and deselections
There has been talk of a more widespread contest, in the form of a general election, as a solution to the Brexit impasse. If there is an election, the question of who represents what party will need to be addressed, with a number of Labour and Conservative MPs having now joined Change UK (reduced in opinion poll tweets to CHUK, which looks unfortunately like a nickname for its former leader) and others now facing deselection by sometimes packed local party associations.
Dominic Grieve faces deselection after losing no confidence vote held by local Tory group https://t.co/4Ae0ab0FdI
— Evening Standard (@standardnews) March 30, 2019
NEW: Members of David Gauke's constituency association are petitioning for a special general meeting to be called over his position on Brexit.
Just 10% of local members are needed for one to take place – a threshold that is likely to be quickly met. pic.twitter.com/sBu3lZFzYm
— Tom Harwood (@tomhfh) March 31, 2019
Vote Leave not appealing
Vote Leave has today dropped its appeal and related proceedings against the Electoral Commission. pic.twitter.com/ca65js0M3i
— Electoral Commission (@ElectoralCommUK) March 29, 2019
This is probably not the end of the saga over the Electoral Commissions somewhat hesitant investigation of misconduct during the 2016 referendum.
Grayling birthday tribute
1 April is Chris Grayling’s birthday, and to mark the occasion we published a lightly satirical look at his prisons policy, ‘Right to buy’ to be extended to prisoners.
Among the other (genuine) April Fools Day entertainments, a couple had a legal flavour:
Transparency Project explained an exciting new development in matrimonial law, as Drive-thru Divorce comes to the UK
And Legal Futures had a story about judges using gavels, but took it down the next day, so all that remains is this tweet:
Magistrates and Commercial Court judges to start using gavels https://t.co/PrH2HkqyJw
— Legal Futures (@legalfutures) April 1, 2019
Artificial Lawyer had a tech-teasing story reporting saying ‘Post-It Note Shortage Leads Firms To Abandon Legal Innovation’
Brexit Express: full steam ahead!
— Steve Baker MP (@SteveBakerHW) March 31, 2019
Like the ideal time machine favoured by the novelist and conservative nostalgist Evelyn Waugh, this symbol of modern technology chugs gently backwards when you play the meme. It is hard to think of a more perfect iconicity for the Brexit process.
That’s it for this week! Thanks for reading. We’ll return with a more serious roundup of legal news and commentary next week.
This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily or at all represent the opinions of ICLR as an organisation.