As the Brexit deadline of 31 October looms, ideas have been floated stating that it would be possible for Prime Minister Boris Johnson to simply ignore the will of the Westminster Parliament and force a no deal exit on Halloween. agendaNi examines how and if a Prime Minister could block a bill or ignore its actions.
One way for a government to halt a bill that it does not wish to enact is through the mechanism known as Queen’s Consent, a procedural requirement for any bill that would affect the royal prerogative if passed. Queen’s Consent differs from Royal Assent in that it is not required for every bill and it does not occur at the end of the legislative process; for Queen’s Consent to be necessary, the bill’s effect on the royal prerogative must be more than de minimis (above trifling matters).
A decision to seek Queen’s Consent is usually taken by the Clerk of the Legislature. If a ruling on whether or not the consent is needed is required, however, that responsibility lies with the Speaker of the House, who receives confidential legal advice from the Clerk.
If a bill is found to be affecting the royal prerogative, a government minister must confirm that the government agrees to its passage at the bill’s third reading stage. In most cases, this and the Queen’s Consent are formalities as it is the Government who bring forward most bills, but in cases such as the recent European Union (Withdrawal) (No. 2) Act 2019 – better known as the Benn-Burt Bill – the Government has the opportunity to stop any such bill that they do not wish to see progress.
The Benn-Burt Bill required Queen’s Consent due to the fact that previous negotiations and agreements over the changing of the Brexit deadline were exercises of prerogative powers, which are now mainly used by the Government in foreign affairs and has been used to sign EU treaties for 46 years, including the Lisbon Treaty, which created the Article 50 process by which the UK is leaving the EU. Like almost all government acts performed at the EU level, the extension of the Article 50 process and any legal acts taken by ministers at the EU level, are done by prerogative power.
A notable exception to this was the Supreme Court’s contention that normal royal prerogative powers could not be used to trigger the Article 50 process as it would frustrate Parliament’s intentions under the European Communities Act 1972, along with other acts. Theresa May’s Government was then required to pass the European Union (Notification of Withdrawal) Act 2017 in order to give themselves the power to trigger Article 50.
The Benn-Burt Bill required Queen’s Consent because of its requirement that Prime Minister agree to an extension of the Brexit deadline date if a deal had not been reached and approved by MPs before 19 October. The fact that the Prime Minister was mandated to agree an extension or deal, rather than simply seek one, meant that the Government’s only option to escape the legislation was to kill it in its third reading stage, a step they did not take.
Throughout the increasingly fraught Brexit process, there have been suggestions that not only could Boris Johnson’s Government block bills relating to Brexit, but that they could simply refuse to implement them. This is highly unlikely and would leave Johnson open to any myriad of legal challenges, but the Benn-Burt Bill’s predecessor, the European Union (Withdrawal) Act 2019, better known as the Cooper-Letwin Bill, did offer a path by which the Prime Minister could ignore a bill in everything but name.
The Government had simply been mandated to attempt to reach a deal; the ferocity, honesty, competency and end goal of these attempts were not mandated, which would have allowed any Government averse to another extension or negotiating with the EU to simply perform self-sabotage and then argue that they had stuck to the legally binding course of the Bill.
The Cooper-Letwin Bill skirted around the need for Queen’s Consent because it had simply mandated the Government and Johnson to “seek” an extension to the Article 50 process under section 1 (2). “Seek” is the crucial operative word here as its indefinite definition meant that Speaker of the House, John Bercow MP, ruled that Queen’s Consent was not necessary for its passage as the seeking of an extension has no definitive outcome and thus, he argued, has no direct effect on the prerogative exercise of seeking an extension. The Speaker’s argument rested on the contested view that the exercise of royal prerogative must have measurable legal effect to be an actual exercise of prerogative power. This ruling gave the Government no option but to abide by the passage of the Bill since, without the need for Queen’s Consent, they had no opportunity to kill it in its third reading stage.
However, in the word “seek” the Bill gave the Government a way out of being forced to pursue a deal or extension against their will. The Government had simply been mandated to attempt to reach a deal; the ferocity, honesty, competency and end goal of these attempts were not mandated, which would have allowed any Government averse to another extension or negotiating with the EU to simply perform self-sabotage and then argue that they had stuck to the legally binding course of the Bill.
While this would not have allowed the Government and Johnson to simply ignore the Bill, as had been portrayed and speculated upon in the media, it would have allowed the British Government to present an obtuse and unworkable solution to the EU and then retreat from negotiations, claiming that an extension had been sought but not agreed, which would have in essence achieved the same outcome as ignoring the Bill.
It has also been suggested that were Johnson to lose a vote of confidence, he could ignore the result and remain as Prime Minister. He would remain as Prime Minister while negotiations to form an alternative government were ongoing and thus remain the Queen’s main constitutional adviser, but without the confidence of Parliament, his advice would no longer be binding.
If an alternative Prime Minister was agreed upon by MPs, Johnson would be expected to resign and to recommend that the Queen appoint the alternative candidate in his place. Refusing to do so would entitle the Queen to dismiss Johnson and appoint the alternative. In general, something of a precedent was set in the 1993 legal case M v the Home Office, where the House of Lords held that the courts could, by injunction or contempt proceedings against the relevant minister, enforce the law if a minister had refused to do so, thus making the likelihood of any minister outright refusing to carry out a mandated duty, rather than looking for loopholes out of legislation they disagree with, highly unlikely.