Constitutional law

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.

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.)


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.


Electoral law

Vote Leave not appealing

This is probably not the end of the saga over the Electoral Commissions somewhat hesitant investigation of misconduct during the 2016 referendum.

ICLR news

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:


Artificial Lawyer had a tech-teasing story reporting saying ‘Post-It Note Shortage Leads Firms To Abandon Legal Innovation’

And finally…

Brexit Express: full steam ahead!


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.