CongressI agree with Mark Elliott in finding my April 1 argument about prorogation and assent astonishing and monstrous, once the argument’s important premises have been omitted, as he has omitted them.  And it is left even more objectionable when he has attributed to it a premise, two assumptions, and a goal each far from my thinking and writing.  At the root of his misapprehensions is an important mistake about constitutional monarchy.

The premise he attributes to me is that it is wrong for the House to undertake indicative votes, or to set aside Standing Orders to do so.  But I said I was concerned about “imminent operations” of a House that had already conducted such unusual indicative votes.  The operations I said I was concerned about were something different: to “override Government resistance by contempt rulings, or even by passing in both Houses a Bill for imposing statutory control of our dealings with the EU.”  (And though it is generally imprudent for Parliament to micro-manage our dealings with foreign powers, I do not, pace Elliott, see anything constitutionally illegitimate in statutory controls on our dealings with the EU.) The first assumption Elliott attributes to me is that in these matters, what is normal is normative.  To be sure, no one should try to deduce Ought from Is.  And everyone should agree that, even when custom and usage are rightly treated, for our common good, as needed for beneficial coordination and therefore normative, there can be appropriate occasions for setting them aside.  The Standing Orders and practice of the Commons are not rarely set aside legitimately.

The second assumption attributed to me is that the executive is “the primary constitutional actor” in whose role “Parliament is no more than an unwelcome interloper”.  But my works celebrate Parliament’s unconditional supremacy over the executive as a source of judicially enforceable law (which includes also common law subject to, though not derived from, statute), and of statutory boundaries for all executive conduct.  And the proper executive, I hold, is that set of ministers whom a majority of the Commons have given their support to without since withdrawing it.

The goal he attributes to my thesis about the legitimacy of brief prorogation in this special kind of circumstance, and (more surprisingly) to my lectures about judicial power, is “executive hegemony”, an “objective of equipping the Government to ensure that it governs on its own terms and that Parliament is denied the opportunity to stop it from doing so.”  But I oppose any such goal or objective, which Elliott could scarcely have imagined had he kept in mind the actual premises articulated, or visible, in my Telegraph article.

Here, in ascending order of cumulative importance, are five such premises which have gone missing in Elliott’s critique.

First, the context is a vast, multi-dimensional exercise in foreign policy, not the less so because also uniquely immediate in impact on our law, public finances and, per the Miller majority, constitution.  Its multi-dimensionality and international intricacy demands the kind of access to information, and rational deliberation about and responsiveness to information, that only a government (and a dedicated civil service) with 24/7 responsibility can well initiate and process.

Second, the oversight and frame-setting of government that of course our legislature’s elected chamber should maintain, and the framework of law (including statutes once they are enacted) that of course must limit and channel governments’ conduct, have in this great affair of state been elaborately provided for by Parliament itself.  My article, pace Elliott, made less of the referendum result than of the Parliamentary approvals that preceded and followed it – and not just the EUNoWA 2017, but also its parliamentary antecedents and then the 2018 Act and the timetables it established both for Parliament and for the legal effects of withdrawal.

Third, the Commons has deliberately chosen to leave our government in the hands of the present set of ministers in preference to any other set that might command the support of a majority for carrying on that government at large.  Westminster democracy depends on balancing the elected branch and the executive so that neither can pursue a particular policy without the acquiescence of the other.

Fourth, a fact omitted in Elliott’s account of my argument: the leader of the parliamentary manoeuvres had (in the Commons) identified their purpose as “a fundamental realignment of the relationship between the civil service (!), Government and Parliament”.  To show that these manoeuvres and associated Speaker’s rulings coalesce to damage the established constitutional balance, my article cited the cogent paper by Sir Stephen Laws and Richard Ekins.  To show that they were constitutionally illegitimate manoeuvres, both their paper and my article considered them, with the rulings, first as each a purposive set and second in their combined effect (not forgetting the manoeuvres’ context: refusal to withdraw confidence and face the electorate).

Fifth, the dangerous combined effect to which my article pointed was not the setting aside of the referendum result – which could be legitimately sought and done by Parliament – but above all the imminent risk that Her Majesty might be confronted with conflicting advice, by the two Houses for assent to a Bill and by her ministers to withhold that assent.

Elliott, like many others, loosely assimilates withholding assent with “veto”.  There is a different looseness in my article’s talk (in keeping with just about everyone else’s) of ministerial advice to withhold assent.  In the context of the United Kingdom, that phrase overlooks an important fact that differentiates us from countries which share our monarch through Governors-General as well as from other countries which have a Westminster system of responsible government but under a President of some kind.  For, as I noted in a letter to the Times on April 6 (scroll down) and the account of assent in Erskine May brings to light, our UK system interposes a politically responsible minister, the Lord Chancellor, between Her Majesty and the two Houses.  Submission for assent of a Bill or set of Bills passed by the two Houses is first to the Lord Chancellor, and there is no even conventionally defined period between passing’s completion and the Bill or Bills’ resultant submission by him to Her Majesty.  Elsewhere, so far as I am aware, a Bill’s submission for assent is done directly, by some officer of the legislature.

The reason for the difference is evident.  A Governor-General or President holds office by appointment made by some politically responsible authority.  Not so the hereditary monarch.  Hence the exceptionally limited range of discretionary or “reserve” authority attributed to Her Majesty within UK law and conventions, as compared with otherwise similar systems for balancing elections, legislative operations, and the executive.

Elliott argued in January that (i) ministers should never tender advice to the Queen to withhold assent from a “duly enacted (sic) Bill”, and (ii) if they did, she has the constitutional right and duty to “disregard it”.  Both theses, especially the second, make light of the variety of circumstances in which there may be live dispute about whether a Bill was “duly” passed, and/or about whether the circumstances as they are evolving during the indeterminate or under-determined period since the Bill’s passing, or in some other unusual way, make assent to it contrary to the public good (including perhaps of the monarchy itself).  The idea that the Queen should disregard the advice of ministers – ministers from whom the elected House has deliberately not withdrawn its confidence and thus has left to carry on Her Majesty’s government – including advice about the illegality or constitutional impropriety of a Bill, does not sufficiently attend to the vulnerabilities of and constraints upon a constitutional hereditary monarch.

As if to forestall plunging the Queen into a conflict of advice such as the potentially imminent conflict my article expressed anxiety about (and suggested might be headed off by brief prorogation of an already unusually extended parliamentary session), our historic system puts the Lord Chancellor in a position to delay the submission of the Houses’ “advice”.  During that delay, which might even last until the session ends (and with it any Bill not yet assented to), the Queen would not have had any relevant advice tendered to her, either by the Houses or by ministers, and hence would remain above the fray.

Such delay would of course be politically contentious, since for a very long time, during which generations of Speakers and other Chairs have upheld the rules associated with the principles of financial initiative and government control of business, submission for assent has been a formality.  Responsibility for the delay would rest entirely with the government of which the Lord Chancellor is a member.

That responsibility, and the lawfulness and propriety of such delay, is all further indicated by the required mechanics of the actual assent, mechanics deliberately retained, as the normal legal requirements for the modern era, by the Royal Assent Act 1967.  What is involved is not only the royal signing of the Bill but also sealing with Great Seal, for which, by the Great Seal Act 1884, it is legally necessary to have a warrant countersigned by one or other of a conspicuously political set of ministers: “by the Lord Chancellor, or by one of Her Majesty’s Principal Secretaries of State, or by the Lord High Treasurer, or two of the Commissioners of Her Majesty’s Treasury”.  The live constitutional point, in relation to similar machinery for the Crown’s involvement in our government of overseas territories, was misunderstood by a majority of the Law Lords in Quark Fishing, as was soon acknowledged by an overlapping majority in Bancoult [2008] UKHL 61, who cited ([39]) a paper of mine that summarised (paras. 15-18) relevant considerations and authorities about the interlocking requirements of constitutional monarchy, executive responsibility and elective-legislative control in the United Kingdom’s democracy.

Parliament is not Congress, empowered by Constitution and statute to make laws without or against the will of the Head of State.  Parliament makes law – acts as Parliament – only when all three of its elements act in coordination.  The Queen’s part in this – her assent – is an act of responsible government performed and performable only on the advice and political responsibility of her ministers.

My Times letter’s thesis was that the passing of the European Union (Withdrawal) (No. 5) Bill defies what Erskine May calls ‘a principle of the highest constitutional importance, that no charge on public funds… can be incurred except on the initiative of the Crown’.  Rather like many a private tax-evasion scheme, the Bill seeks to circumvent, evade, various rules that give effect to the principle.  It would impose on the Prime Minister the obligation to exercise the Crown’s initiative in initiating the incurring of the expenses of extending EU membership; on that and other grounds, it will of course be contended that the Bill itself is not ‘for incurring’ a charge on public funds.  But the scheme’s evasion of ‘a principle of highest constitutional importance’ is quite clear enough to be reciprocated by a constitutionally legitimate political decision to withhold royal assent, not by advice to the Queen but by delay.  The delay’s appropriate rationale would be to protect Her Majesty while pushing back against the Commons’ defiance of constitutional principle (and the Lords’ opposition- party-whipped acquiescence in it), while obliging the Commons to face up to its political and constitutional responsibility.

That responsibility, complicated and obscured by the Fixed Term Parliaments Act 2011, is at the root of the present crisis, whose elements and sources make little or no appearance in Elliott’s critique.  It is the responsibility to choose between allowing the government its historically proper initiative (no more and no less) in foreign and financial affairs, or finding an alternative set of ministers to undertake that initiative who do enjoy stable majority support, or facing the electorate in a general election designed to choose the government (by choosing members of a new House of Commons).

John Finnis FBA is Professor Emeritus of Law & Legal Philosophy at the University of Oxford and Biolchini Family Professor of Law in the University of Notre Dame. 

(Suggested citation: J. Finnis, ‘Royal Assent – A Reply to Mark Elliott’, U.K. Const. L. Blog (8th Apr. 2019) (available at https://ukconstitutionallaw.org/))

CongressI agree with Mark Elliott in finding my April 1 argument about prorogation and assent astonishing and monstrous, once the argument’s important premises have been omitted, as he has omitted them.  And it is left even more objectionable when he has attributed to it a premise, two assumptions, and a goal each far from my thinking and writing.  At the root of his misapprehensions is an important mistake about constitutional monarchy.

The premise he attributes to me is that it is wrong for the House to undertake indicative votes, or to set aside Standing Orders to do so.  But I said I was concerned about “imminent operations” of a House that had already conducted such unusual indicative votes.  The operations I said I was concerned about were something different: to “override Government resistance by contempt rulings, or even by passing in both Houses a Bill for imposing statutory control of our dealings with the EU.”  (And though it is generally imprudent for Parliament to micro-manage our dealings with foreign powers, I do not, pace Elliott, see anything constitutionally illegitimate in statutory controls on our dealings with the EU.) The first assumption Elliott attributes to me is that in these matters, what is normal is normative.  To be sure, no one should try to deduce Ought from Is.  And everyone should agree that, even when custom and usage are rightly treated, for our common good, as needed for beneficial coordination and therefore normative, there can be appropriate occasions for setting them aside.  The Standing Orders and practice of the Commons are not rarely set aside legitimately.

The second assumption attributed to me is that the executive is “the primary constitutional actor” in whose role “Parliament is no more than an unwelcome interloper”.  But my works celebrate Parliament’s unconditional supremacy over the executive as a source of judicially enforceable law (which includes also common law subject to, though not derived from, statute), and of statutory boundaries for all executive conduct.  And the proper executive, I hold, is that set of ministers whom a majority of the Commons have given their support to without since withdrawing it.

The goal he attributes to my thesis about the legitimacy of brief prorogation in this special kind of circumstance, and (more surprisingly) to my lectures about judicial power, is “executive hegemony”, an “objective of equipping the Government to ensure that it governs on its own terms and that Parliament is denied the opportunity to stop it from doing so.”  But I oppose any such goal or objective, which Elliott could scarcely have imagined had he kept in mind the actual premises articulated, or visible, in my Telegraph article.

Here, in ascending order of cumulative importance, are five such premises which have gone missing in Elliott’s critique.

First, the context is a vast, multi-dimensional exercise in foreign policy, not the less so because also uniquely immediate in impact on our law, public finances and, per the Miller majority, constitution.  Its multi-dimensionality and international intricacy demands the kind of access to information, and rational deliberation about and responsiveness to information, that only a government (and a dedicated civil service) with 24/7 responsibility can well initiate and process.

Second, the oversight and frame-setting of government that of course our legislature’s elected chamber should maintain, and the framework of law (including statutes once they are enacted) that of course must limit and channel governments’ conduct, have in this great affair of state been elaborately provided for by Parliament itself.  My article, pace Elliott, made less of the referendum result than of the Parliamentary approvals that preceded and followed it – and not just the EUNoWA 2017, but also its parliamentary antecedents and then the 2018 Act and the timetables it established both for Parliament and for the legal effects of withdrawal.

Third, the Commons has deliberately chosen to leave our government in the hands of the present set of ministers in preference to any other set that might command the support of a majority for carrying on that government at large.  Westminster democracy depends on balancing the elected branch and the executive so that neither can pursue a particular policy without the acquiescence of the other.

Fourth, a fact omitted in Elliott’s account of my argument: the leader of the parliamentary manoeuvres had (in the Commons) identified their purpose as “a fundamental realignment of the relationship between the civil service (!), Government and Parliament”.  To show that these manoeuvres and associated Speaker’s rulings coalesce to damage the established constitutional balance, my article cited the cogent paper by Sir Stephen Laws and Richard Ekins.  To show that they were constitutionally illegitimate manoeuvres, both their paper and my article considered them, with the rulings, first as each a purposive set and second in their combined effect (not forgetting the manoeuvres’ context: refusal to withdraw confidence and face the electorate).

Fifth, the dangerous combined effect to which my article pointed was not the setting aside of the referendum result – which could be legitimately sought and done by Parliament – but above all the imminent risk that Her Majesty might be confronted with conflicting advice, by the two Houses for assent to a Bill and by her ministers to withhold that assent.

Elliott, like many others, loosely assimilates withholding assent with “veto”.  There is a different looseness in my article’s talk (in keeping with just about everyone else’s) of ministerial advice to withhold assent.  In the context of the United Kingdom, that phrase overlooks an important fact that differentiates us from countries which share our monarch through Governors-General as well as from other countries which have a Westminster system of responsible government but under a President of some kind.  For, as I noted in a letter to the Times on April 6 (scroll down) and the account of assent in Erskine May brings to light, our UK system interposes a politically responsible minister, the Lord Chancellor, between Her Majesty and the two Houses.  Submission for assent of a Bill or set of Bills passed by the two Houses is first to the Lord Chancellor, and there is no even conventionally defined period between passing’s completion and the Bill or Bills’ resultant submission by him to Her Majesty.  Elsewhere, so far as I am aware, a Bill’s submission for assent is done directly, by some officer of the legislature.

The reason for the difference is evident.  A Governor-General or President holds office by appointment made by some politically responsible authority.  Not so the hereditary monarch.  Hence the exceptionally limited range of discretionary or “reserve” authority attributed to Her Majesty within UK law and conventions, as compared with otherwise similar systems for balancing elections, legislative operations, and the executive.

Elliott argued in January that (i) ministers should never tender advice to the Queen to withhold assent from a “duly enacted (sic) Bill”, and (ii) if they did, she has the constitutional right and duty to “disregard it”.  Both theses, especially the second, make light of the variety of circumstances in which there may be live dispute about whether a Bill was “duly” passed, and/or about whether the circumstances as they are evolving during the indeterminate or under-determined period since the Bill’s passing, or in some other unusual way, make assent to it contrary to the public good (including perhaps of the monarchy itself).  The idea that the Queen should disregard the advice of ministers – ministers from whom the elected House has deliberately not withdrawn its confidence and thus has left to carry on Her Majesty’s government – including advice about the illegality or constitutional impropriety of a Bill, does not sufficiently attend to the vulnerabilities of and constraints upon a constitutional hereditary monarch.

As if to forestall plunging the Queen into a conflict of advice such as the potentially imminent conflict my article expressed anxiety about (and suggested might be headed off by brief prorogation of an already unusually extended parliamentary session), our historic system puts the Lord Chancellor in a position to delay the submission of the Houses’ “advice”.  During that delay, which might even last until the session ends (and with it any Bill not yet assented to), the Queen would not have had any relevant advice tendered to her, either by the Houses or by ministers, and hence would remain above the fray.

Such delay would of course be politically contentious, since for a very long time, during which generations of Speakers and other Chairs have upheld the rules associated with the principles of financial initiative and government control of business, submission for assent has been a formality.  Responsibility for the delay would rest entirely with the government of which the Lord Chancellor is a member.

That responsibility, and the lawfulness and propriety of such delay, is all further indicated by the required mechanics of the actual assent, mechanics deliberately retained, as the normal legal requirements for the modern era, by the Royal Assent Act 1967.  What is involved is not only the royal signing of the Bill but also sealing with Great Seal, for which, by the Great Seal Act 1884, it is legally necessary to have a warrant countersigned by one or other of a conspicuously political set of ministers: “by the Lord Chancellor, or by one of Her Majesty’s Principal Secretaries of State, or by the Lord High Treasurer, or two of the Commissioners of Her Majesty’s Treasury”.  The live constitutional point, in relation to similar machinery for the Crown’s involvement in our government of overseas territories, was misunderstood by a majority of the Law Lords in Quark Fishing, as was soon acknowledged by an overlapping majority in Bancoult [2008] UKHL 61, who cited ([39]) a paper of mine that summarised (paras. 15-18) relevant considerations and authorities about the interlocking requirements of constitutional monarchy, executive responsibility and elective-legislative control in the United Kingdom’s democracy.

Parliament is not Congress, empowered by Constitution and statute to make laws without or against the will of the Head of State.  Parliament makes law – acts as Parliament – only when all three of its elements act in coordination.  The Queen’s part in this – her assent – is an act of responsible government performed and performable only on the advice and political responsibility of her ministers.

My Times letter’s thesis was that the passing of the European Union (Withdrawal) (No. 5) Bill defies what Erskine May calls ‘a principle of the highest constitutional importance, that no charge on public funds… can be incurred except on the initiative of the Crown’.  Rather like many a private tax-evasion scheme, the Bill seeks to circumvent, evade, various rules that give effect to the principle.  It would impose on the Prime Minister the obligation to exercise the Crown’s initiative in initiating the incurring of the expenses of extending EU membership; on that and other grounds, it will of course be contended that the Bill itself is not ‘for incurring’ a charge on public funds.  But the scheme’s evasion of ‘a principle of highest constitutional importance’ is quite clear enough to be reciprocated by a constitutionally legitimate political decision to withhold royal assent, not by advice to the Queen but by delay.  The delay’s appropriate rationale would be to protect Her Majesty while pushing back against the Commons’ defiance of constitutional principle (and the Lords’ opposition- party-whipped acquiescence in it), while obliging the Commons to face up to its political and constitutional responsibility.

That responsibility, complicated and obscured by the Fixed Term Parliaments Act 2011, is at the root of the present crisis, whose elements and sources make little or no appearance in Elliott’s critique.  It is the responsibility to choose between allowing the government its historically proper initiative (no more and no less) in foreign and financial affairs, or finding an alternative set of ministers to undertake that initiative who do enjoy stable majority support, or facing the electorate in a general election designed to choose the government (by choosing members of a new House of Commons).

John Finnis FBA is Professor Emeritus of Law & Legal Philosophy at the University of Oxford and Biolchini Family Professor of Law in the University of Notre Dame. 

(Suggested citation: J. Finnis, ‘Royal Assent – A Reply to Mark Elliott’, U.K. Const. L. Blog (8th Apr. 2019) (available at https://ukconstitutionallaw.org/))

Cambridge UniversityAn article in the Sunday Times by Professor Richard Ekins and Sir Stephen Laws QC advised that the Monarch could withhold Royal Assent to a bill passed if advised to do so by ministers.  Robert Craig  has also argued for that position in a blog post, making clear why in his view that is the democratically legitimate position.  Professors Mark Elliott and Thomas Poole both refute these views, but recognize a prima facie tension between a constitutional convention that the Monarch follow ministerial advice on the one hand, and a convention that the Monarch almost automatically give Royal Assent to duly passed bills on the other.  Poole assumes for the sake of argument that they might be in conflict, and argues that were it so, the convention on Royal Assent would prevail.  I agree with him so far as that argument goes. (Professor Poole also alludes to the view that I detail further below as probably the better view). Mark Elliott recognizes the tension but says it would be a mistake to see an actual conflict between the conventions.  He argues that the convention on following ministerial advice simply does not apply to the exercise of Royal Assent, for ‘There is absolutely no uncertainty when it comes to granting royal assent, and so Ministerial advice is beside the point.’  I agree with Professor Elliott’s conclusion but want to illustrate it in a way that addresses more fully some of the arguments to the contrary.  I argue that the key distinction here is that the convention on ministerial advice does not apply to the Crown’s legislative function when the Monarch acts as Crown-in-Parliament. It is reserved for most of her executive functions regarding matters outside the legislative process, chiefly for those functions exercised in what is often called Crown-in-Council. Let’s take the most obvious starting point. Every Act of the UK Parliament commences with the following preamble:

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

The role of ministers is conspicuously absent in this formula.  Note that the Commons and Lords not only provide ‘consent’ but also ‘advice’ in the matter, and she acts by the authority of that composite Parliament. Anne Twomey has written a magisterial book covering the law and practice in Westminister systems around the Commonwealth: The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (Cambridge University Press, 2018). She confirms that as a matter of practice in the UK, Royal Assent is given by the Queen signing letters patent prepared by the Clerk of the Crown and no advice is given by ministers. (p. 627; see also the Royal Assent Act 1967).  She recognizes that there is a paucity of any precedents on the question of whether consent can be refused on the advice of ministers.  But there is some UK practice of a less dramatic kind. At pp. 628-29, Twomey  recounts an occurrence that is highly material to the present question in the UK:

The British position was clarified within the British Government when preparing a response in 1972 to a letter by a British subject contending that the Queen should refuse assent to the European Communities Bill 1972. The subject, Mr McWhirter, argued that the grant of royal assent would be in violation of the Queen’s Coronation Oath as the bill would fetter the powers of Parliament. The first draft of a response to this complaint stated that it is an ‘established constitutional convention that the Royal Assent will not be refused to Bills which have been passed by both Houses of Parliament and which Ministers advise should receive assent.’ This was later corrected, upon the advice of the Lord Chancellor’s Office, on the ground that ministerial advice is not tendered in relation to the grant of royal assent.  The letter, as altered to state the correct position, provided that ‘it is an established constitutional convention indeed (it might be said) a custom of the realm – that the Royal Assent is not withheld from Bills which have been passed by both Houses of Parliament’.

This is the closest we have to an official pronouncement on exactly this subject, opined on by the then Lord Chancellor, confirmed by letter from the Monarch.  In another case recounted by Twomey, the Governor General of New Zealand was advised in 1877 by then Prime Minister George Grey to refuse assent to a Bill that had passed through the New Zealand parliament prior to Grey taking office. The Governor refused this advice, arguing that the Bill must be opposed in parliament and not by way of advice to him to refuse assent.  When Prime Minister Grey complained to the UK Secretary of State for the Colonies about the issue, arguing that the Governor was constitutionally obligated to follow ministerial advice, the Secretary of State backed the Governor and rejected the Prime Minister’s contention. (pp. 646-647) Professor Twomey’s book is relied on by Robert Craig for the view that the Queen must withhold Royal Assent on ministerial advice.  But her own view is different, and in my view comes across differently in her book. In her discussion of the issue of ministerial advice to refuse assent, she concludes her own analysis of the issue by questioning the salience of the very distinction between responsible or representative government that Craig relies on in his argument:

The critical question is whether a vice-regal officer is still obliged to act upon the advice of ministers to refuse assent if those ministers appear to have lost the confidence of the House or at least failed to hold its confidence in relation to the particular bill. The principle of responsible government is a two-way street – while the head of state must act upon the advice of responsible ministers, ministers must maintain their status as responsible to Parliament in order to be entitled to give that advice. The whole raison d’être of responsible government is to give primacy to Parliament by ensuring executive accountability to it. It would seem illogical, therefore, for the principles of responsible government to be relied upon to override the will of Parliament.

Twomey also quotes a 2013 blog post by Nick Barber at length, which argues that Royal Assent should not be withheld in such a situation but follow by automatic operation of convention. That concludes her discussion of that particular issue. Indeed, she has written again recently in a blog post in Australia confirming that in her view, ministerial advice to refuse Royal Assent should be ignored and would be politically foolish. It is at any rate in those discussions that Twomey has, as did Nick Barber in 2013, addressed the argument that the refusal of royal assent would be democratically appropriate on the theory that we have a responsible rather than representative government. That argument, as I understand it, assumes that the Commons can only be taken to express a formal lack of confidence in a Government by passing a motion of non-confidence. But there is no reason to take that view, for, as Twomey observes, it can and historically has been found in relation to particular bills as well.  The Fixed Term Parliaments Act 2011 expressly enhances the power of the Commons to disagree with the Government without asking it to resign – and it has used these kinds of powers in this regard on numerous occasions in the present Parliament.  The Wright Reforms to the House were also premised on the assumption that the House’s powers against the Government should be strengthened in ways more diverse than the blunt tool of non-confidence: see Rebuilding the House (First Report, Session 2008-9, HC 1117). In short: there are several ways in which the House of Commons can express a lack of confidence in a particular measure, Bill, or general conduct of business. The disapplication of Standing Orders and the passage of a Bill contrary to the Government’s wishes are cases in point. To be fair, Twomey does acknowledge academic views that support the view that the Queen should heed ministerial advice: ‘The predominant academic view, which is strongly influenced by an aversion to the prospect of the exercise of any reserve power, is that the Sovereign and her vice-regal representatives must act upon the advice of responsible ministers.’ (pp. 622-623) In a recent letter to the Times, a significant number of senior constitutional lawyers took the opposite view (one that in fact aligns with Twomey’s own view). That suggests that the view Twomey refers to is predominant in the printed scholarly sources to which she quite properly refers.  That is a far cry from what is the dominant view among present scholars, most of whom never imagined such an issue called for an explicit view.  At any rate, the ground stated for the view Twomey discusses as predominant is what needs to be noted here. It is fear of the ‘reserve power’, i.e. the power of the Monarch to withhold royal assent without ministerial advice. Precisely that kind of power has been affirmed by scholars like Rodney Brazier, and countenanced by Geoffrey Marshall.  And that is not a remote concern.  Much of Twomey’s analysis considers situations where the reserve power could be exercised without ministerial advice, including in cases where the Monarch or her representatives would come to their own independent view of whether the Bill satisfies legality and validity requirements (pp. 652ff) or subverts the principles of representative democracy or human rights (pp. 664-672). Brazier has been cited often for the claim that Royal Assent can be withheld on ministerial advice. But will those advocating the Queen’s power to withhold Assent now also subscribe to Brazier’s view that the Queen has the power to act as the ‘ultimate guardian of the constitution’ and refuse assent to a Bill she considers, on his theory at any rate, to be ‘a permanent subversion of the democratic basis of the constitution’?  Whether or not we live in a parliamentary democracy turns on the answer given by people in authority to that question. The view of the signatories of the letter to the Times seems clearly to be ‘no’ – insofar as the letter states that the Queen’s role in relation to a passed bill is ‘purely ceremonial’ and that, in common with the statement on the website of Parliament, Royal Assent is a ‘formality.’ Much of the debate has thus been concerned with whether the Monarch could refuse royal assent even where ministers advise her to grant it. The case for following advice there is democratic. But in my view it is superfluous.  The advice of both Houses of Parliament provides the necessary and sufficient democratic authority.   The legally salient distinction here is the Queen’s legislative function as Crown-in-Parliament, and its difference from her executive functions often descried as Crown-in-Council.  This does not deny that the Sovereign as ‘Crown’ follows advice in matters connected to calling, dissolving, or proroguing Parliament, or in respect of certain appointments (e.g. of peers to the House of Lords).  But those are not her role in the legislative process. Royal Assent is an instance of a prerogative power to which ministerial advice does not apply but to which other constitutional conventions apply.  It is in this respect much like the convention that governs the appointment of a new Prime Minister following an election. There is no ministerial advice to be given, at least to the extent that such would draw the Queen into party politics: see the Cabinet Office, Cabinet Manual, October 2011, p. 15. Rather, the convention is that she appoints the person who is in the best position to receive the majority of support of the House of Commons.   Here, as with the convention of Royal Assent in respect of her legislative function, the constitutional convention goes with the grain of a representative democracy and governs her use of the prerogative power entirely independently of Government views. My claim is therefore that there is no convention that ministerial advice be accepted in relation to exercise of Royal Assent, for the Queen follows, as the preamble to all enactments states, the advice of the two Houses of Parliament and not the advice of the Government.   The proffering of ministerial advice may in some kinds of cases be permissible. It has been made in various cases elsewhere in the Commonwealth and in some places is explicitly incorporated into the legislative process.  In the UK, however, the Monarch is not bound to accept that advice. It is a separate question, in fact, and not explored seriously here, whether in circumstances such as the present, it would be unreasonable and hence unlawful for ministers to advise the Queen to withhold consent. To do so would draw her into a political dispute, it would imply wrongly that she is bound to follow ministerial advice, and it would lead to a constitutional change in the settled practice being led not only without parliamentary support (as is required in the Miller case) but exactly contrary to the expressed wishes of the two Houses of Parliament.  In my view,  furthermore, ministerial advice forms no part of the legislative process in the UK and hence is not protected from judicial scrutiny by Article 9 of the Bill of Rights 1689. Whether any legal dispute arising under these or other terms would be regarded as justiciable by the courts is yet a further matter, also for another day – one that hopefully never comes.

Jeff King is a Professor of Law at the Faculty of Laws, University College London.  He thanks Anne Twomey for comments and Robert Craig, Gavin Phillipson, Tom Hickman QC and Tom Poole for previous discussions.

(Suggested citation:  J. King, ‘Can Royal Assent to a Bill be Witheld If So Advised by Ministers?’ U.K. Const. L. Blog (5th Apr. 2019) (available at: https://ukconstitutionallaw.org/))

Advocate GeneralProfessors Gavin Phillipson and Alison Young have argued on this blog that an Act of Parliament is needed to revoke article 50. An alternative view is that, while an Act may be desirable, it is not necessary. This is still an important issue because on Wednesday 27th of March 2019, 184 votes in the House of Commons were cast in favour of revoking article 50 before ‘exit day’ if no agreement had been reached, 293 votes were cast against, and 164 MPs abstained. By contrast, 400 MPs voted against ‘no deal’. Mathematically the question of revocation remains in play, because in an emergency a positive majority of the Commons may emerge. Because an Act takes longer than executive action, the question of the legal mechanism to revoke article 50 must be scrutinised.

Arguments that revocation of article 50 would frustrate statute

One possible starting point is that Advocate General Campos Sánchez-Bordona at [145] of his opinion in Wightman v Secretary of State for Exiting the EU (2018) C‑621/18 said that because triggering article 50 required Parliament’s authority, it was ‘logical, in [his] view, that the revocation of that notification also requires parliamentary approval’. This appears to have misunderstood R (Miller) v Secretary of State for Exiting the EU [2017] UKSC 5, which decided that triggering article 50 risked depriving citizens of rights guaranteed by Acts of Parliament. Deprivation of rights requires a new Act. But revoking article 50 threatens nobody’s statutory rights: it protects them. On that basis alone an Act is not needed.

Professors Gavin Phillipson and Alison Young make a different, forceful argument that ‘using the prerogative to revoke Article 50 would frustrate [the] purposes’ of the European Union (Withdrawal) Act 2018. First, it is argued following Lord Browne-Wilkinson in R v Home Secretary, ex parte Fire Brigades Union [1995] UKHL 3 that prerogative powers cannot ‘be validly exercised by the executive so as to frustrate the will of Parliament as expressed in a statute’. Second, Phillipson and Young say Miller (even if one disagrees with its result) has reaffirmed the principles set out in FBU (at [35] and [51]). Third, they say the ‘whole purpose of the Act is to facilitate the UK’s actual exit’ and it is unpersuasive to say the Act merely expresses an incomplete ‘intention’ to that effect. Fourth, they say this ‘conclusion is reinforced when we examine’ sections 8 to 12, which enable Ministers to write delegated legislation upon withdrawal for any ‘deficiency’, to implement the withdrawal agreement, and to change the restrictions of devolved legislatures to not act incompatibly with the Act rather than EU law. Fifth, the power of a Minister in section 20(4) to ‘amend the definition of “exit day”’ to ‘the day and time that the Treaties are to cease to apply to the United Kingdom’ would, they say, ‘be rendered devoid of purpose’ and ‘meaningless’.

Reasons that revocation of article 50 would not frustrate statute

The arguments of Professor Phillipson and Young must respectfully be rejected for at least five reasons. First, in the FBU case, on which Phillipson and Young rely heavily, the Home Secretary (Michael Howard) had a statutory duty to introduce a criminal injury compensation scheme, and it was this duty that would have been frustrated if the scheme was never introduced. According to Lord Browne-Wilkinson it was ‘of central importance’ that this duty was ‘itself in force’. But section 1 of the EUWA 2018 is not in force.

Second, even if section 1 of the EUWA 2018 were in force nobody has a duty in relation to exit day. Parliament gave ministers the power to ‘amend the definition of “exit day”’ to ‘the day and time that the Treaties are to cease to apply to the United Kingdom’. But if ‘the day and time’ never comes, Parliament said nothing further about it. This was wise because, as Lord Nicholls said in the FBU case, the ‘range unexpected happenings is infinite’, a ‘serious flaw… might come to light. An economic crisis might arise. The government might consider it was no longer practicable, or politic’ to continue.

Third, the language of the Act ensures that the UK can change its mind. If ‘exit day’ is never commenced the preparations and arrangements to be made under sections 8 to 12 never come into play because there is never any agreement by the House of Commons of ‘the withdrawal agreement’. Everything in the Act is ‘contingent and prospective’ (to adopt a phrase from insolvency law) upon a withdrawal agreement actually being agreed.

Fourth, the better view is that ‘Parliament has retained ultimate control over the UK’s withdrawal’, and this must include the possibility that ‘exit day’ could be indefinitely delayed. Section 13 says there must be ‘Parliamentary approval of the outcome of negotiations with the EU’. Any drafter of this legislation must have therefore envisaged that Parliament would simply say ‘no’. In any event, revocation would not mean there would never be exit day, because there is always the possibility that article 50 could be triggered again.

Fifth, upon revocation of article 50, exit day could simply be delayed pending a political decision to repeal the Act. In this situation, revocation could not be reasonably considered to frustrate the Act. Just as no referendum can rule the living forever from its grave, the keystone of our constitution is that no Parliament can bind a future Parliament.

Despite these reasons, it does not follow that an Act, though unnecessary, is undesirable. An Act of Parliament could be useful to remove the power of the executive with regard to the timetable of withdrawal and negotiations, and therefore the potential for its abuse. For this reason alone, the discussion of legislation, which Phillipson and Young have highlighted, is a valuable one.

Executive action to revoke article 50

If there is no question of frustration, this means that under the European Union (Notification of Withdrawal) Act 2017 section 1, the Prime Minister can revoke article 50. The popular view in the media appears correct that this is ‘a unilateral act that could be done in minutes by [the Prime Minister] via an email to Donald Tusk’. Section 1 is framed in the style of international law negotiations, which on the pathbreaking analysis of Sir Hersch Lauterpacht QC function like any ordinary contractual dealing. Indeed, the right to revoke an intention to negotiate for a deal (or an invitatio ad offerendum) is codified in the Vienna Convention on Treaties, article 68. Because pausing Brexit has become the majority will of the British public (a fact that seems to compound with demographic change) the orthodox legal position that the executive may revoke article 50 also appears politically sound.

Dr Ewan McGaughey (@ewanmcg) is a senior lecturer at the School of Law, King’s College, London, and a research associate at the Centre for Business Research, University of Cambridge.

(Suggested citation: E. McGaughey, ‘What Is Needed in Our Constitution to Revoke Article 50?’, U.K. Const. L. Blog (2nd Apr. 2019) (available at https://ukconstitutionallaw.org/))

Brexit Tearing of FlagsLord, what fools these mortals be – Shakespeare, Midsummer Night’s Dream

Last Friday should have been the day the UK left the EU.  Instead the Westminster Parliament, in a rare Friday sitting, rejected the Withdrawal Agreement component of the Prime Minister’s Brexit deal by a substantial majority.

What has happened?

  • Parliament has imposed “indicative votes” on possible Brexit outcomes on a reluctant Government, but then failed to produce a majority in favour of any outcome
  • The Prime Minister has played her last card in trying to get her deal across the line, by saying she would resign when it was approved, but Parliament has again refused
  • The EU extension of Article 50 to 22 May has formally lapsed, and the default is extension to 12 April, then no deal Brexit unless the UK has come up with a credible alternative plan

What next?

  • The Prime Minister may have one last try to get her deal approved, but unless the Government can get the Northern Ireland Democratic Unionist Party (DUP) to support it, this looks unlikely to succeed
  • Parliament will try again on 1st April (colloquially known as April Fool’s Day) to establish which alternative option could command majority support
  • If both fail, the PM’s last big decision will be whether push through to a “no deal” Brexit on 12 April (against the now well established will of Parliament), or to accept an alternative Parliament supports and seek a short extension with re-negotiation of the Political Declaration on the future relationship, or to seek a much longer extension of the Article 50 process.

What does it all mean?

A prominent historian last week described the position as the greatest constitutional crisis in the UK in 300 years.  Parliament cannot agree on anything, except what it doesn’t want.  The Prime Minister’s last gambit looks unlikely to succeed, but has deprived her of the last vestiges of authority.  The EU looks on with irritation, but also concern.  Up to a million people marched in London in favour of a further referendum.  A petition to revoke Article 50 gathered 6 million signatures.  On 29 March, supposedly “Brexit Day”, angry demonstrators converged on Parliament, deprived of what they thought they had voted for.  The public are increasingly fed up with the antics of politicians.  Business is exasperated.

The options however remain the same:  deal (though not necessarily the PM’s deal), no deal, or no Brexit.  If Parliament is against both Mrs May’s deal and no deal, and against any alternative deal, the logic points to “no Brexit”.  But only 184 MPs supported that option last Wednesday evening.  Realistically, unless the PM can somehow bring the DUP round and give her deal a last try (if the Speaker will allow it), the options seem now to be a long extension to the Article 50 process (probably at least a year, and with the need to resolve the European Parliament elections question), or no deal Brexit on 12 April.  “No deal” is clearly against the will of Parliament.  It attracted only 160 MPs in favour last Wednesday, and the largest vote against of the evening (400 MPs).  No one knows what Theresa May thinks, but if she decides “no deal” is the only way to deliver Brexit, there is quite a high likelihood of it happening.  It could also happen simply because the UK and the EU fail to take the necessary decisions in time.  The chances of a “no deal” Brexit have certainly increased over the past week, but it remains an unlikely outcome.

So does everything else.  Downing Street has spent the weekend in agonizing deliberations.  A number of pro-Brexit Cabinet Ministers, apparently backed by a letter signed by 170 Conservative MPs, have told the PM they will resign if she allows a move towards a softer Brexit, eg. including participation in a customs union, or allows a delay to Brexit beyond 22 May.  A number of pro-EU Cabinet Ministers have been clear in private and in public that they will resign if she adopts “no deal” as Government policy.  The Prime Minister’s objective to avoid splitting the Conservative Party looks increasingly difficult.  There has been much talk of a General Election as a way out, but neither major party really wants one – it is hard to see how either could write a coherent manifesto – and there is a strong chance that it would not resolve anything.  And most Conservative MPs are absolutely determined not to fight another election under Theresa May’s leadership.

What could happen?

The effective deadline for the UK Government and Parliament to decide a way forward is around 8/9 April.  The European Council will meet on 10 April to assess the situation and decide whether to extend the Article 50 deadline beyond 12 April.  It is impossible to predict what Governmental and Parliamentary manœuvres will lead to this week.

The Prime Minister may well try to get her deal through again, but with resolute opposition from the DUP (which is to do with keeping Northern Ireland’s place within the United Kingdom, not a particular Brexit concern), and with Labour MPs concerned that if the PM’s deal is approved it will be implemented by a new Prime Minister who favours a harder Brexit, this looks a forlorn hope.  Given the impossibility now to make any significant changes to the Withdrawal Agreement element, it looks hard to see how the DUP could ever be brought to support it.  Labour MPs would be more open if the Political Declaration was re-negotiated to provide more explicitly for a softer Brexit, but that would re-ignite opposition among Conservative MPs.

Among a wide range of other unlikely outcomes, the three most probable are:

  • no deal Brexit on 12 April, possibly (if the European Council so decides) with a short extension (not beyond 22 May) so that both sides can finalise preparations
  • if Parliament has settled a way forward, which the Government accepts, and the European Council believes credible, a short extension (again, not beyond 22 May) to revise the Political Declaration to take account of the new way forward, contingent on evidence of Parliament’s willingness to approve the Withdrawal Agreement
  • a much longer (a year or more) delay to the Article 50 timetable, on EU terms (which are likely to include participation in the European Parliament elections in late May), which would be very likely to lead to a change of Conservative Party leader (and Prime Minister), and possibly a General Election.  The chances of a referendum to confirm public support for whatever model of Brexit emerges are also growing.

Of these, the first and the third look more likely than the second – the standard of proof the European Council would need to see the second as credible looks hard to achieve in such volatile politics in Westminster.

Implications for our clients

The range of options, and timescales, three days after the UK should have left the EU, remains as wide as ever.  We are still some way from knowing what future trading relationships will look like.  But any final “no deal” preparatory steps should be taken between now and 12 April:  it is not our predicted outcome, but the chances of it happening have increased.

If you need help with any aspect of your Brexit planning and preparation, please do get in touch with our Brexit team.  We have sectoral and subject expertise, backed by political and legal analysis, which can ensure you are properly prepared.

On 27 March 2019 the House of Commons held a series of indicative votes following its earlier resolution which provided for a series of votes on ways the Government could proceed as regards its Brexit strategy.

AllotI would like to thank Professor Allott for his fascinating post, ‘Unexpected Denouement’. The UK Remains in the EU by Mistake. The Brexit Saga Could Run and Run’ from Tuesday.  I just wanted to be advocatus diaboli on a couple of points, although some extremely able advocates, commenting below the original post, should also be heeded.

While I have no quibble with Professor Allott’s view of Wightman, my concern is centred on the paragraphs discussing how the UK would come to stay indefinitely within the EU.  Professor Allot states:

The agreement of 21 March between the Prime Minister and the European Council extended the period of negotiation and thereby prevented automatic withdrawal on 29 March.  As a result of the agreement of 21 March, the two-year time-limit in Article 50 measured from March 2017 ceased to have legal significance.

Thus, if I may paraphrase, Mrs May’s deal of last week nullified – as far as the UK was concerned – that part of Article 50(3) TEU dealing with the time limit by which withdrawing Member States must leave failing the adoption of a withdrawal agreement.  By way of reminder, Article 50(3) reads:

The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

Since the proviso beginning ‘unless the European Council’ has been overcome, the preceding text of Article 50(3), or at least all the text after ‘failing that’ is rendered if not otiose then certainly in casu redundant, to be replaced by whatever the new ‘unanimously decide[d]’ leaving date (or as it turned out dates) may be.

Professor Allott goes on to criticize the Council’s choice of new dates, suggesting among other things that this choice is an abuse of power, that it amounts to a ‘virtual amendment of the time-limit in Article 50,’ and that it cannot conceivably be lawful.  He goes on to imagine a future legal challenge in the national court or at the Court of Justice, or indeed a challenge which involved both fora, and the length of time which such a challenge would take.  Indeed, he supposes, the resolution of the case might actually post-date the date or dates impugned.  He concludes this section as follows:

If the time-limits in the agreement of 21 March were held to be unlawful and invalid under EU law and UK law, the UK would then continue to be, or would retroactively become again, a member state of the EU.

It is this sentence which I find – with the greatest possible respect – puzzling.  For if the agreement of last week (the resultant Council Decision is actually dated the 22nd) was operational for the purposes of erasing the ‘two years after the notification’ stipulation in Article 50(3), why would it not also be operational in all other respects?  A contrario, we could ask, if the agreement was not operational in all other respects (that is, the actual choice of the new dates), why would it be operational to bring about the erasure?  I feel that this is a sleight of hand causing the UK first to lose its old leaving date, then to lose its new ones, and finally to find itself not leaving at all.

Just to take one of Professor Allott’s arguments, a perusal of the travaux préparatoires for the Constitutional Treaty (CT) – which eventually gave way to the Lisbon Treaty, albeit with new Article 50 TEU more or less intact from its CT days – reveals little to support the proposition that the extension mechanism was intended ‘to allow [the withdrawing State] to avoid the disaster of an automatic withdrawal’ or indeed to facilitate further negotiation, genuine or otherwise.  The one fact that comes across considerably more than any other is how unpopular the two-year deadline limb of (what is now) Article 50(3) really was, with an enormous number of delegates calling for the third paragraph to end with the words ‘entry into force of the withdrawal agreement.’  Many others did not want a voluntary withdrawal provision in the Treaty at all.

Might other arguments be available?  Certainly the fact of making these alternatives dependant on a matter falling entirely within national political competence is worthy of note.  Aside from the areas of EU Enlargement and occasionally state aid, the national parliaments rarely feature in EU legal discourse.  They have never been elevated to the role of a ‘third chamber,’ and so, outside of the ratification of Treaties, their say-so is not usually required under EU law, even if their objections have taken on more significance in recent years.  It is thus hard to think of a previous EU legal act giving a Member State parliament such a central, indeed crucial, role.  The EU’s famous foray into Austrian politics during the Haider Affair comes to mind, as do EU incursions into Hungary’s internal policies and Greece’s finances, but while during those episodes the EU was directing events and the Member State following, here the roles are reversed (at least on the surface).  And although this is not a reason to impugn the Council Decision, one does worry that these two choices of deadline might sway national parliamentarians in their decision-making, undermining the EU’s own rule-of-law credentials.

Of course in carrying out EU legal responsibilities, the European Council must act in accordance with EU general principles, and perhaps a more promising line of enquiry, although not necessarily more fruitful, would be to consider whether the use of two alternative deadlines might not have strained, if not breached, the principle of legal certainty.

Let us suppose that there was an arguable case that the EU had acted beyond its powers.  Then the correct thing to do then would be to bring an action under Article 263 TFEU to challenge the Council Decision.  But were it later struck down, all that would do is return us to the position quo ante – we leave on Friday 29 March 2019.  I respectfully do not follow Professor Allott’s thesis that we stay indefinitely.  I suppose that it is possible that, if passed, the Statutory Instrument drafted to introduce the new time-limits into UK law (not technically needed thanks to direct applicability) could be judicially reviewed, but if the argument was that its EU origins were somehow unlawful, that would require a reference to the Court of Justice under Article 267 TFEU, with the result of a strike-down in ultimate effect no different to that described above in relation to Article 263.

Theresa May’s fourteen (or fifty four) day extension deal may have taken eight hours to negotiate, but will probably ultimately feature only as a small footnote in the Brexit saga, of which I suspect we now only at the end of Volume One.  The episode nonetheless illustrates once again how uncomfortably the law’s certainty sits alongside the dynamic, shifting realities of the Brexit experiment.

Richard Lang, Senior Lecturer in EU Law, University of Brighton and member of the EU Committee of the Law Society of England & Wales

(Suggested citation: R. Lang, ‘Consequences of the Extension Deal: A Reply to Professor Allott’, U.K. Const. L. Blog (29th Mar. 2019) (available at https://ukconstitutionallaw.org/))




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