Where are we now?What Next?

The UK’s progress towards leaving the European Union has been a tortuous and turbulent affair. It has been marked by Prime Minister Theresa May’s Government suffering repeated heavy defeats in Parliament, which would normally have led to a change of policy if not of Government, but carrying on with its Brexit stance unchanged. So you could be forgiven for assuming that a series of votes initiated by backbenchers at the end of February in which the Government suffered no defeats would also signal no change. Not so. Even more paradoxical, the significant change to the Government’s approach at the end of February may make the outcome the Government has been aiming for all along a little more likely.

What happened? In mid-February, the Government headed off a serious push to give Parliament more influence over the process through an amendment tabled by Labour’s Yvette Cooper, by promising more opportunities to vote at the end of the month. Amid rumblings of discontent among the hitherto loyal Brexit Delivery Group (100+ Leave and Remain supporting Conservative MPs who have supported the PM throughout) and the threat of mass resignations of Ministers, at the end of February the PM effectively adopted the Cooper amendment as her own policy, which led Cooper to propose a further amendment designed to bind the PM to stick to her commitment – this passed with a very comfortable majority, though around 110 Conservatives failed to support it (most abstained, 22 voted against).

What does it all mean? On 12 March, Parliament will vote again on the Withdrawal Agreement, with whatever adaptations the Government has been discussing with the EU (see below for the likely status of these). If Parliament accepts, this will form the basis for the UK’s departure from the EU. If not, on 13 March Parliament will vote whether to proceed to leave the EU with no deal. If Parliament declines to do that, it will vote on 14 March whether the Government should request an extension to the Article 50 deadline of leaving the EU on 29 March.

If the Withdrawal Agreement does not pass on 12 March, it is virtually certain that Parliament will then vote against “no deal” and to ask for a delay to the Brexit process, in the belief that the EU will grant such a delay. The risk of a “no deal” exit on 29 March has therefore been reduced to close to zero (though of course the EU has also to agree any delay – see below), but, as the PM was at pains to stress in Parliament, delay does not remove “no deal” at the end of the delay period. The Parliamentary arithmetic however seems inexorable. It is doubtful that, as some have asserted, the risk of “no deal” was putting much pressure on the EU side of the negotiation: the EU can read the Parliamentary arithmetic as well as anyone. The moves in Parliament at the end of February increase the likelihood that Parliament will assert the majority against “no deal” Brexit into the future.

 

What will Parliament vote on 12th March?

But the Withdrawal Agreement may yet pass on 12th March. The pro-Brexit Conservative European Research Group (ERG) split for the first time in the Parliamentary vote, with most abstaining but a core of 20 voting against. The language of their more publicly known spokesmen (all of whom abstained) about what they need to see in out of the Government’s negotiations with the EU has moderated considerably, though not yet to a point that reflects a realistic outcome to the Government’s negotiations with the EU. On 12 March, the ERG will face a choice between voting to ensure that Brexit happens, through the Withdrawal Agreement, or the near certainty it will be delayed, the likelihood of a softer Brexit, and the possibility (still in my judgement remote, but growing) of it being frustrated altogether.

What will be on the table? The EU will want to avoid any risk of the ERG pocketing whatever has been negotiated and coming back for more. So they are more likely to say something along the lines of: “if you can show a Parliamentary majority for X, we will consider it at the European Council on 21-22 March”. ‘X’ is likely to consist of some more legally worded version (in a codicil or separate document) of what the Commission has already said about the Irish border backstop provision not being intended by the EU to be a permanent solution (it would of course be against the EU’s own interests to grant the UK a permanent Customs Union and a measure of Single Market access without free movement of people), and some more specific language in the accompanying Political Declaration about exploring alternative arrangements for the Irish border during the future relationship negotiations. Given the mind-concentrating effect of the risk to the Brexit process noted above, this may just be enough to get the Withdrawal Agreement through, with the support or abstention of between 20-30 Labour MPs who represent strongly pro-Brexit constituencies and who are disturbed by the latest turn of Labour policy (see below).

If the Withdrawal Agreement does pass on 12 March, and is concluded at the European Council on 21-22 March, it is probable that a short “technical delay” to the date of Brexit would still be necessary, to allow time for the necessary implementing measures to be put in place in both the UK and EU (the European Parliament has also to ratify the Withdrawal Agreement). This is unlikely to be contentious on either side.

 

Never put off to tomorrow what you can put off to next month…

What happens if Parliament votes for delay? The PM asserted that this would be a limited, one-off delay (to the end of June) to keep trying to find a way forward, with the possibility of “no deal” at the end (though she had to concede that Parliament could itself decide the length of the delay to be requested of the other 27 Member States of the EU). The PM’s stance frankly looks highly unrealistic, from both a Parliamentary and an EU perspective. Parliament having voted to block “no deal” and defer Brexit once would be very likely to do so again. And it is very hard to see the EU agreeing simply to string out the current process for another three months.

If Parliament has voted for delay on 14th March, the likelihood is of intensive negotiations between the UK and the EU about how long the delay should be and for what purpose, running up to the 21-22 March European Council which would then decide whether to agree to the delay. Apart from the PM’s view (which could be unkindly characterised as: “I have run out of road along which to kick the can, so please extend the road”), there are a number of possible models of delay. The delay could be shorter (so not complicating the European Parliament elections) but with a clear commitment that Parliament will be given an opportunity to vote for different models of Brexit to see what would command support, something the Prime Minister has adamantly resisted up to now. This need not lead to much change to the Withdrawal Agreement, but would affect the terms of the Political Declaration on the future relationship. The risk of course is that Parliament would be unable to coalesce as a majority around any model of Brexit. If it can, it is almost certain to be a softer form of Brexit (Norway+ or Common Market 2.0).

The alternative would be a much longer delay, through perhaps to what was intended to be the end of the implementation period in December 2020, to allow time for a proper re-think of the way forward. Some in the EU seem to favour this, though it would probably mean UK participation in the European Parliament elections (politically difficult in UK and EU).

In both cases, it is hard to see how Theresa May continues as Prime Minister (though her resilience to Brexit reverses is remarkable). Longer delay increases the chances of a General Election – a highly uncertain prospect given the divisions in both parties.

 

Meanwhile….

Theresa May is not the only leader finding her Party difficult. Jeremy Corbyn has been forced into a significant reverse of his personal stance (though in this case in line with the policy adopted at the last Labour Party Conference), and to come out in support of a fresh referendum. He has done so, as one commentator put it, with the visible enthusiasm of a schoolboy approaching a plate of Brussels sprouts. Senior Labour figures instantly gave contradictory accounts of what the new policy means, and what the questions would be, though they all agreed that “no deal” would not be among the questions, and “remain” would be. Mr Corbyn had to shift towards a further referendum to stave off further defections from his party to a new Independent Group of MPs (8 have gone so far, plus 3 Conservatives). The defections have been caused by a number of issues, including persistent allegations of anti-semitism in the Party, but the defectors – along with many Labour MPs – all favour a fresh referendum on Brexit. Mr Corbyn could not afford more defections. Does the shift of Labour policy materially increase the chances of a fresh referendum? Probably not. Any proposal for a referendum would still struggle to get through Parliament: the Government would vote against, and Conservative Party discipline would be likely to hold for all bar a small number of MPs, whereas a larger number of Labour MPs from strongly pro-Brexit constituencies would find it very hard to support a referendum. Mr Corbyn has not committed to including a referendum in the Labour manifesto for an election.

 

So what does it all mean?

As before, there is no outcome to which looks more than 50% likely. The Withdrawal Agreement (with additional accompaniments), a delay to Brexit, and an election have all become a little less unlikely. “No deal” Brexit has become more unlikely. And a referendum and no Brexit remain very unlikely. If the Withdrawal Agreement does not gain Parliamentary support on 12 March, is it dead? Again, probably not. Most of it is necessary for the UK to leave the EU in any agreed scenario. The true debate is likely to be about the shape of the future relationship (which is covered in the Political Declaration), and therefore what the provisions of the Withdrawal Agreement lead to. A debate some would say the UK would have been wise to have had, in Parliament and in the country, before serving the Article 50 notice.

Where are we now?What Next?

The UK’s progress towards leaving the European Union has been a tortuous and turbulent affair. It has been marked by Prime Minister Theresa May’s Government suffering repeated heavy defeats in Parliament, which would normally have led to a change of policy if not of Government, but carrying on with its Brexit stance unchanged. So you could be forgiven for assuming that a series of votes initiated by backbenchers at the end of February in which the Government suffered no defeats would also signal no change. Not so. Even more paradoxical, the significant change to the Government’s approach at the end of February may make the outcome the Government has been aiming for all along a little more likely.

What happened? In mid-February, the Government headed off a serious push to give Parliament more influence over the process through an amendment tabled by Labour’s Yvette Cooper, by promising more opportunities to vote at the end of the month. Amid rumblings of discontent among the hitherto loyal Brexit Delivery Group (100+ Leave and Remain supporting Conservative MPs who have supported the PM throughout) and the threat of mass resignations of Ministers, at the end of February the PM effectively adopted the Cooper amendment as her own policy, which led Cooper to propose a further amendment designed to bind the PM to stick to her commitment – this passed with a very comfortable majority, though around 110 Conservatives failed to support it (most abstained, 22 voted against).

What does it all mean? On 12 March, Parliament will vote again on the Withdrawal Agreement, with whatever adaptations the Government has been discussing with the EU (see below for the likely status of these). If Parliament accepts, this will form the basis for the UK’s departure from the EU. If not, on 13 March Parliament will vote whether to proceed to leave the EU with no deal. If Parliament declines to do that, it will vote on 14 March whether the Government should request an extension to the Article 50 deadline of leaving the EU on 29 March.

If the Withdrawal Agreement does not pass on 12 March, it is virtually certain that Parliament will then vote against “no deal” and to ask for a delay to the Brexit process, in the belief that the EU will grant such a delay. The risk of a “no deal” exit on 29 March has therefore been reduced to close to zero (though of course the EU has also to agree any delay – see below), but, as the PM was at pains to stress in Parliament, delay does not remove “no deal” at the end of the delay period. The Parliamentary arithmetic however seems inexorable. It is doubtful that, as some have asserted, the risk of “no deal” was putting much pressure on the EU side of the negotiation: the EU can read the Parliamentary arithmetic as well as anyone. The moves in Parliament at the end of February increase the likelihood that Parliament will assert the majority against “no deal” Brexit into the future.

 

What will Parliament vote on 12th March?

But the Withdrawal Agreement may yet pass on 12th March. The pro-Brexit Conservative European Research Group (ERG) split for the first time in the Parliamentary vote, with most abstaining but a core of 20 voting against. The language of their more publicly known spokesmen (all of whom abstained) about what they need to see in out of the Government’s negotiations with the EU has moderated considerably, though not yet to a point that reflects a realistic outcome to the Government’s negotiations with the EU. On 12 March, the ERG will face a choice between voting to ensure that Brexit happens, through the Withdrawal Agreement, or the near certainty it will be delayed, the likelihood of a softer Brexit, and the possibility (still in my judgement remote, but growing) of it being frustrated altogether.

What will be on the table? The EU will want to avoid any risk of the ERG pocketing whatever has been negotiated and coming back for more. So they are more likely to say something along the lines of: “if you can show a Parliamentary majority for X, we will consider it at the European Council on 21-22 March”. ‘X’ is likely to consist of some more legally worded version (in a codicil or separate document) of what the Commission has already said about the Irish border backstop provision not being intended by the EU to be a permanent solution (it would of course be against the EU’s own interests to grant the UK a permanent Customs Union and a measure of Single Market access without free movement of people), and some more specific language in the accompanying Political Declaration about exploring alternative arrangements for the Irish border during the future relationship negotiations. Given the mind-concentrating effect of the risk to the Brexit process noted above, this may just be enough to get the Withdrawal Agreement through, with the support or abstention of between 20-30 Labour MPs who represent strongly pro-Brexit constituencies and who are disturbed by the latest turn of Labour policy (see below).

If the Withdrawal Agreement does pass on 12 March, and is concluded at the European Council on 21-22 March, it is probable that a short “technical delay” to the date of Brexit would still be necessary, to allow time for the necessary implementing measures to be put in place in both the UK and EU (the European Parliament has also to ratify the Withdrawal Agreement). This is unlikely to be contentious on either side.

 

Never put off to tomorrow what you can put off to next month…

What happens if Parliament votes for delay? The PM asserted that this would be a limited, one-off delay (to the end of June) to keep trying to find a way forward, with the possibility of “no deal” at the end (though she had to concede that Parliament could itself decide the length of the delay to be requested of the other 27 Member States of the EU). The PM’s stance frankly looks highly unrealistic, from both a Parliamentary and an EU perspective. Parliament having voted to block “no deal” and defer Brexit once would be very likely to do so again. And it is very hard to see the EU agreeing simply to string out the current process for another three months.

If Parliament has voted for delay on 14th March, the likelihood is of intensive negotiations between the UK and the EU about how long the delay should be and for what purpose, running up to the 21-22 March European Council which would then decide whether to agree to the delay. Apart from the PM’s view (which could be unkindly characterised as: “I have run out of road along which to kick the can, so please extend the road”), there are a number of possible models of delay. The delay could be shorter (so not complicating the European Parliament elections) but with a clear commitment that Parliament will be given an opportunity to vote for different models of Brexit to see what would command support, something the Prime Minister has adamantly resisted up to now. This need not lead to much change to the Withdrawal Agreement, but would affect the terms of the Political Declaration on the future relationship. The risk of course is that Parliament would be unable to coalesce as a majority around any model of Brexit. If it can, it is almost certain to be a softer form of Brexit (Norway+ or Common Market 2.0).

The alternative would be a much longer delay, through perhaps to what was intended to be the end of the implementation period in December 2020, to allow time for a proper re-think of the way forward. Some in the EU seem to favour this, though it would probably mean UK participation in the European Parliament elections (politically difficult in UK and EU).

In both cases, it is hard to see how Theresa May continues as Prime Minister (though her resilience to Brexit reverses is remarkable). Longer delay increases the chances of a General Election – a highly uncertain prospect given the divisions in both parties.

 

Meanwhile….

Theresa May is not the only leader finding her Party difficult. Jeremy Corbyn has been forced into a significant reverse of his personal stance (though in this case in line with the policy adopted at the last Labour Party Conference), and to come out in support of a fresh referendum. He has done so, as one commentator put it, with the visible enthusiasm of a schoolboy approaching a plate of Brussels sprouts. Senior Labour figures instantly gave contradictory accounts of what the new policy means, and what the questions would be, though they all agreed that “no deal” would not be among the questions, and “remain” would be. Mr Corbyn had to shift towards a further referendum to stave off further defections from his party to a new Independent Group of MPs (8 have gone so far, plus 3 Conservatives). The defections have been caused by a number of issues, including persistent allegations of anti-semitism in the Party, but the defectors – along with many Labour MPs – all favour a fresh referendum on Brexit. Mr Corbyn could not afford more defections. Does the shift of Labour policy materially increase the chances of a fresh referendum? Probably not. Any proposal for a referendum would still struggle to get through Parliament: the Government would vote against, and Conservative Party discipline would be likely to hold for all bar a small number of MPs, whereas a larger number of Labour MPs from strongly pro-Brexit constituencies would find it very hard to support a referendum. Mr Corbyn has not committed to including a referendum in the Labour manifesto for an election.

 

So what does it all mean?

As before, there is no outcome to which looks more than 50% likely. The Withdrawal Agreement (with additional accompaniments), a delay to Brexit, and an election have all become a little less unlikely. “No deal” Brexit has become more unlikely. And a referendum and no Brexit remain very unlikely. If the Withdrawal Agreement does not gain Parliamentary support on 12 March, is it dead? Again, probably not. Most of it is necessary for the UK to leave the EU in any agreed scenario. The true debate is likely to be about the shape of the future relationship (which is covered in the Political Declaration), and therefore what the provisions of the Withdrawal Agreement lead to. A debate some would say the UK would have been wise to have had, in Parliament and in the country, before serving the Article 50 notice.

authorI wrote recently on this blog about the issue of Royal Assent. This post concerns the wholly separate issue of Royal Consent which is a requirement for those rare Bills that would affect the royal prerogative.

The possibility of a no deal exit has led Yvette Cooper MP to propose a Bill, the European Union (Withdrawal) (No. 4) Bill (‘EUWA2019’) to mandate the government to delay exit day if no deal is agreed by Parliament. The latest iteration of the Bill can be found here. Previous iterations of EUWA2019 have either been dropped or Cooper’s proposal has been rejected by the House of Commons in a vote. Three Cabinet ministers have now publicly threatened to support the Bill.

Technically, Cooper’s Bill would be a Private Member’s Bill. As is well known, such Bills normally have no chance of passing without executive sanction because the Government controls the business of the House under Standing Order 14 which means that the necessary parliamentary time to pass such a Bill must be agreed by the Government.

Given Government opposition to her Bill, Cooper must persuade the House of Commons to suspend Standing Order 14 to allow time for her Bill to go through the parliamentary stages. In practice, amendments to Standing Orders can only be made on motions moved by a minister. This means that Cooper cannot initiate such a motion herself to ask the House to make time for her Bill by suspending the usual rules. Cooper can, however, seek to amend the motion that the Government has said they will table for debate on 12 March to secure the same outcome.

The key provisions of the fourth version of the Cooper Bill / EUWA2019

In brief, EUWA2019 would not apply if the Prime Minister’s deal has passed – s 1. If a deal has not passed by 13 March, the Act would give the Prime Minister the option of seeking the approval of Parliament for a no deal exit the next day – s 2(2).

Failing that, a motion must be moved by the Prime Minister which would mandate her to seek an extension of the Article 50 period until an unspecified date, although a proposed new exit date must be inserted into the relevant motion – s 2(3), s 2(4) and s 2(7). That new exit date would be amendable by the House by vote – s 2(8).

If the EU proposes a different date, provision is made mandating the Prime Minister to move a motion approving that date but permitting the House to mandate the Prime Minister to seek another date – s 2(10) and s 2(11). Finally, nothing in the Bill would prevent the Prime Minister from seeking an extension otherwise than in accordance with the Bill – s 2(12).

Unlike some earlier drafts, this version of the Bill no longer appears to fall foul of Standing Order 48 which states that only ministers can propose Bills that incur financial expenditure. This is because it does not require a minister to amend the domestic due date for exit which is set out in s 20(4) EUWA. The drafters of the Bill no doubt took the view that it was sufficient to mandate the Prime Minister to seek a new date at EU level. This would leave the Prime Minister to pick up the consequential legal pieces in domestic law by in effect forcing her to lay before Parliament an ancillary statutory instrument to change the date for domestic purposes if a new date is agreed with the EU at the international level.

The Bill is amendable by any MP. During a debate over one of the previous iterations of the Bill, the former Conservative Chief Whip, Mark Harper MP, rather pointedly asked whether such an amendment could include a provision mandating the Prime Minister to revoke notification of Article 50 in the event of no deal. This possibility was not denied. The recent case of Wightman in the CJEU confirms that unilateral revocation is possible at the EU level. There seems little doubt that the Government and its supporters will be implacably opposed to the Cooper Bill because such amendments could be made, as well as for other political reasons.

Royal Consent

In a blog in 2013 on this site, Tom Adam drew attention to a little known procedure in the House of Commons that deals with Royal Consent. It is important to make clear that Royal Consent is an entirely separate matter from Royal Assent. Royal Consent is a specific procedure that is only triggered, for our purposes, if a Bill affects the exercise of the royal prerogative (although there are some other more trivial circumstances where it can be triggered). This procedure has attracted serious academic criticism but nevertheless it undeniably still exists.

As Rodney Brazier (CLJ 2007) pointed out, ministers can recommend that Royal Consent ‘be withheld in relation to any Bill (in practice, a private Member’s Bill) which was unacceptable to them’ and ‘as long as the requirement of Queen’s consent remains… [it is] another way in which a Government could prevent parliamentary debate about legislation which did not coincide with that Government’s wishes’.

All Bills that affect prerogative powers must secure Royal Consent. As the Office of Parliamentary Counsel (pdf) (‘OPC’) make clear (at 5.2 and 5.16), formal Consent ‘falls to be signified’ by a Minister ‘nodding in response to a request from the Chair’ at the Third Reading of the Bill. The 11th Report of the House of Commons Committee states (at [10-11]) that where a Private Members Bill requires Consent, ‘the Member writes to the relevant Minister to ask the Government to arrange for Consent to be obtained’. The Member does not write to the Queen themselves. The Committee go on to address what would happen if Ministers do not want a particular Bill to be granted Consent. They say that ‘Ministers would tend not to advise the Queen… to withhold Consent: they would simply not seek Consent in the first place’.

One previous example of Royal Consent not being granted is highlighted by Tom Adam in his blog. In 2000, Tam Dalyell MP tried to place the prerogative power to declare war onto a statutory footing. Royal Consent was not granted. Brazier sets out a number of other examples ranging from the Peerage (Ireland) Bill 1868 to the Rhodesia Independence Bill 1969.

It is therefore necessary to consider whether EUWA2019 would affect the exercise of any royal prerogative because, if it does, ministers could prevent the passage of the Cooper Bill through Parliament by indicating that Royal Consent to the Bill would not be sought. Crucially, this would be an internal procedural matter within the House of Commons, thus avoiding the more formal and high profile involvement of the Queen that would occur were advice to be given to refuse Royal Assent after the Bill had passed both Houses, which I discussed in my previous post.

Would royal prerogative be affected by EUWA2019?

I have argued on this blog that the Prime Minister continues to possess the prerogative power to extend Article 50 using the royal prerogative of treaty making. This is because a brief extension to the Article 50 process would not, in my view, frustrate the intention of Parliament in EUNoWA or EUWA. It is important to distinguish the prerogative power, which is exercised at the international level, from s 20(4) EUWA, which is the statutory power to set exit day in domestic law. It is also crucial to distinguish a mere delay from the quite different issue of an attempt to revoke notification under Article 50 which would require fresh legislation – see here and here.

If it is accepted that the Prime Minister retains a prerogative power to extend the Article 50 process, the question then arises as to whether EUWA2019 would affect that prerogative power. To answer this question requires consideration of the abeyance principle laid down in De Keyser’s Hotel. In short, where a statutory power overlaps with a prerogative power then the prerogative is no longer available to the executive and is therefore suspended or goes into abeyance. Lord Parmoor laid out the essence of the doctrine in his speech in De Keyser.

When the power of the Executive…has been placed under Parliamentary control, and directly regulated by statute, the Executive no longer derives its authority from the Royal Prerogative of the Crown but from Parliament and, in exercising such authority the executive is bound to observe the restrictions which Parliament has imposed.

It is suggested that if the Bill is passed, the Prime Minister would no longer have the ability to use the treaty prerogative power either to seek an extension that was contrary to the terms of the Act or refuse to seek an extension, which is itself an aspect of the discretionary power encompassed by the prerogative. Instead, statute would have ‘directly regulated’ the exact same area and power.

Given the statute would mandate the Prime Minister to seek an extension for a specified period of time, it is further suggested that EUWA2019 would clearly ‘impose restrictions’ on the exercise of the relevant prerogative power. In those circumstances, it is suggested that the power under the prerogative to extend the Article 50 period would go into abeyance for the period governed by EUWA2019.

One potential counter argument could be derived from the terms of EUWA2019. Section 2(12) states:

Nothing in this section prevents the Prime Minister from seeking an extension of the period specified in Article 50(3) of the Treaty on European Union otherwise than in accordance with the provisions of subsections (1) to (11).

It could be argued that this section means that EUWA2019 would leave the prerogative power untouched because it specifically states that any other power to seek an extension is not precluded. This post respectfully disagrees with such an interpretation.

It will be recalled that mandating the Prime Minister to seek an extension would be wholly against her will. If s 2(12) EUWA2019 could be interpreted as leaving the prerogative power untouched, then the Prime Minister could theoretically try to circumvent the Act by announcing that she was seeking an extension of just one week, contrary to EUWA2019, using the prerogative power. The alleged justification for this would be on the grounds that s 2(12) expressly allowed her to continue to use the original power notwithstanding the provisions of the Act. Such an attempt would be directly contrary to the terms of the Act and would be a clear breach of the abeyance principle.

This hypothetical example demonstrates, therefore, that the original prerogative power to extend Article 50 would clearly be restricted and directly regulated by EUWA2019 such that the Prime Minister could not use the prerogative for the duration of the period eventually specified in the Act. Section 2(12) can only sensibly be read as leaving the original prerogative power unaffected once the other provisions in that section have run their course.

Conclusion

It would appear, therefore, that EUWA2019 would directly affect the prerogative and consequently the Cooper Bill must secure Royal Consent under long established internal House of Commons procedures requiring positive ministerial action and approval. This means the Government can prevent the Bill from passing by not seeking Royal Consent. It follows therefore that not only are there mechanisms available to the Government to ensure that the Cooper Bill falls, but, more importantly, the inevitably controversial decision to advise the Queen to refuse Royal Assent can be avoided.

The reason that these mechanisms and procedures are relatively unknown is because it is so rare for the royal prerogative to be affected by a Bill, particularly one to which the Government is opposed. If the Bill had been proposed or sanctioned by the Government, Royal Consent would obviously be a formality.

It is suggested, therefore, that notwithstanding the increasing political discussion around the Cooper Bill, the Government retains the ability to insist that the only choices available to Parliament, for as long as the Government remains in office, are: 1) the Prime Minister’s deal, or 2) no deal.

The author would like to thank Nikki de Costa, Colm O’Cinneide, Jack Simson-Caird, Stephen Laws, Henry Hill, Alison Young, Stephen Tierney and Gavin Phillipson for their helpful comments on a previous draft. The usual disclaimer applies.

Robert Craig is an AHRC doctoral candidate and part time tutor in law at Durham Law School, Durham University and at LSE, Department of Law.

(Suggested citation: R. Craig, ‘Why Royal Consent Is Required for the Proposed Article 50 Extension Bill’, U.K. Const. L. Blog (25th Feb. 2019) (available at https://ukconstitutionallaw.org/))




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