How the Government can stop anti-Brexit Bills from becoming Law

The government is faced with backbenchers, notably Yvette Cooper and Dominic Grieve, who are seeking to stop Brexit from happening by repealing or amending the 2018 EU Withdrawal Act and 2017 EU Notification of Withdrawal Act.  In the normal run of things, a backbench initiative should not present a problem to a government because a government has control of the legislative timetable, notably through standing order 14 of the House of Commons.  However the Speaker of the Commons John Bercow is very hostile to Brexit and is very biased.  He is ensuring, and will ensure, that these backbench anti-Brexit initiatives get parliamentary time.

Moreover, the government’s majority, even including the DUP is very slender (13), and rebellions by hardline Remain Conservative MPs could well get anti-Brexit legislation through the Commons.

However the government does have three ways of preventing bills from becoming law, beyond seeing them voted out in the Commons.  The purpose of this blog is to say what they are and to provide the background constitutional explanation, including the precedents.

The ways a government can stop bills from becoming law, besides voting them out in the Commons, are:

1. Advise the Queen to withhold Royal Assent when the bill is presented to her, following its successful passage through the Commons and Lords.  This power was last used in Queen Anne’s reign in 1708 to block a bill on Scottish Militias.
2. Advise the Queen to withhold her consent for the bill to be debated.  This would cause the bill to fall at the Third Reading.  This power pertains only to bills impinging on the Royal Prerogative.  This power was last used as recently as 16th April 1999 (see below) on advice from the Blair government to block a bill that would have made the decision to attack Iraq contingent on a vote in the House of Commons.
3. Advise the Queen to prorogue Parliament i.e. to suspend Parliament.  If Parliament is prorogued all the bills going through Parliament fall.  This power was last used in Canada, where the Canadian Parliament was prorogued between 4th December 2008 and 26th January 2009, on advice from Stephen Harper’s Conservative government, in order to avoid a vote of no-confidence.

Any bill that would repeal the 2018 EU Withdrawal Act and/or the 2017 EU Notification of Withdrawal Act outright or instruct the government to seek an extension of the Article 50 period, would also be impinging on the Royal Prerogative.  This is because the power to make, break or modify international treaties is a Royal Prerogative.  Britain’s EU membership is based on successive British governments having signed, using the Royal Prerogative, the set of EEC/EC/EU treaties that are known collectively as “The Treaties” and formally as The Treaty of the EU (TEU) and The Treaty for the Functioning of the EU (TFEU).  British adherence to these treaties is given legal effect by the 1972 European Communities Act, as amended.  This is why the core of the 2018 EU Withdrawal Act is to repeal the European Communities Act at 11PM on 29th March of this year.  It follows then that the government could choose to block anti-Brexit bills using the second way above i.e. block the bill at its second reading, because any anti-Brexit bill would force the government to seek to extend British adherence to the EU Treaties beyond 11PM on 29th March 2019.

The Monarch is the head of the Government as well as head of State.

The United Kingdom has a head of state, a government and a legislature.  The head of state is also the head of the government, as is also the case in the United States and France.  This is why the British government is called Her Majesty’s Government, for the simple reason that the government is her Majesty’s.  For the same reason British government ministers are known as Ministers of the Crown.  This constitutional point was made by Winston Churchill, perhaps unintentionally, in the telegram he sent to General Alexander on 10th August 1942 appointing him as Commander in Chief Middle East:

“1.  Your prime and main duty will be to take or destroy at the earliest opportunity the German-Italian Army commanded by Field Marshall Rommel, together with all its supplies and establishments in Egypt and Libya.

2.  You will discharge or cause to be discharged such other duties as pertain to your Command, without prejudice to the task described in paragraph 1, which must be considered paramount in His Majesty’s interests (my italics)”

In conclusion the Queen is the head of the government.  This statement might surprise people because the Queen’s position is hereditary and she has no democratic mandate.  This apparent difficulty has been overcome by the convention that the Monarch accepts binding advice from the Prime Minister.  Thus the Queen’s very considerable powers are exercised not on the Queen’s own free will but on the advise of the Prime Minister.

At this point it is worth making a diversion into history to see how the Monarch’s role has changed.   Medieval Kings and Queens were active heads of government in the sense that we would recognize today as the compass of Prime Ministers.  The Monarch would direct the government and appoint Ministers.  Parliament was the legislature and right from the beginning of Parliament (in 1265) all taxes had have Parliament’s assent before they could be levied.  All statute laws were made in Parliament,  an example of a surviving statute that is in force today is the 1351 Treason Act, passed in the reign of Edward III.  In those days the Legislature (Parliament) and the Monarch’s government were very separate.

Over a period of about 150 years, from the Glorious Revolution in 1688 to the beginning of Queen Victoria’s reign, the relationship between the Monarch and Parliament changed, and moved towards the situation we have today.  This change was due to:

• The 1689 Bill of Rights which re-emphasized Parliamentary power.
• The emergence of political parties (the Whigs and Tories) in William III’s reign.
• George I becoming King in 1714, a German with no knowledge of English, and this led to the emergence of the office of Prime Minister (Robert Walpole in George I’s reign).

In Queen Victoria’s reign the situation was very similar to today, in that the Prime Minister would give binding advice to the Monarch, and the Prime Minister had supplanted the Monarch as the person directing the government.

Royal Assent

To become statute Law a bill that has successfully passed through the Commons and Lords must receive Royal Assent.  This is not a formality.  Royal Assent is the Head of the Government saying “yes” to legislation going onto the statute book.  The mechanism of Royal Assent is the means by which the constitution makes sure that both the government and legislature agree with a bill becoming statute Law.  This point was very obvious in the period before 1688, when the government was unambiguously in the day to day control of the Monarch.

It is fair to say that Royal Assent has in more recent times had the appearance of a formality, because the government has been in control of the parliamentary timetable so any bill that made it through the Commons and Lords would only have done so with governmental approval.  Moreover the British first past the post system tends to result in governments having working majorities in the House of Commons with well under fifty per cent of the total popular vote.  However the foregoing situation has changed since 2011:

• The passing of the Fixed Term Parliament Act 2011 means that governments fall much less easily than before. i.e. minority governments can survive despite defeats in the House of Commons.
• The hung parliaments in 2010 – 2015 and 2017 to the present means that governments have had to form coalitions or make confidence and supply agreements to have working majorities.
• John Bercow, the Speaker, is using his own powers to discard precedent and favour the hard Remain side.

The above three factors mean that legislation could get through the House of Commons and the House of Lords against the wishes of the present government.  Suddenly Royal Assent has ceased being a formality and has returned to its former significance pre-1688, as the assent of the government to a new statute law.

Royal Prerogative

The Royal Prerogative powers are those powers which the Monarch exercised directly as Head of the government in Medieval Times and which the Monarch exercises today on the advice of the Prime Minister*.  They may be listed thus:

• The power to grant Royal Assent to bills that have gone through the Commons & Lords.  When a bill receives Royal Assent it becomes statute Law.
• The power to appoint the Prime Minister.
• The power to summon Parliament.
• The power to prorogue Parliament.
• The power to wage war on another country.
• The power to annexe a foreign territory.
• The power to make (or break) international treaties.
• The Monarch is the Commander in Chief of the armed forces.
• The power to make regulations for the armed services.
• The Monarch is the Supreme Governor of the Church of England.
• The power to appoint Bishops and Archbishops in the Church of England.
• The power to grant passports.
• The power to grant clemency to convicted prisoners.
• The power to grant honours.

*The exception is the power to appoint the Prime Minister.  This is not done on the advice of the Prime Minister.  Instead the Queen (or her Governor General in Australia, Canada or New Zealand) exercises her own judgement for this decision.

Queen’s Consent

When a bill that impinges on the Royal Prerogative (see above) is brought before Parliament the Queen’s Consent is required for the bill to proceed beyond the Third Reading.  Indeed up until 24th February 2015 the requirement for the Queen’s Consent was at the Second Reading.  As well as the Royal Prerogative, the Queen’s Consent is also required for bills impinging on:

• Hereditary revenues of the Monarch.
• The Duchy of Lancaster.
• The personal interests of the Monarch.

If a bill that requires the Queen’s Consent does not receive the Queen’s Consent then the bill falls at the Third Reading.

Precedents for withholding of the Queen’s Consent.

Her Majesty Queen Elizabeth II has, on the advice of her Prime Minster of the day, withheld her consent for bills to be debated on three occasions during her reign.  In all three cases the bills impinged on the Royal Prerogative.  These precedents are:

• The Military Action Against Iraq (Parliamentary Approval) Bill, 1999.
• The Reform of the House of Lords Bill, 1990.
• The Palace of Westminster (Removal of Crown Immunity) Bill, 1988.

The Military Action Against Iraq (Parliamentary Approval) Bill 1999.

The Military Action Against Iraq (Parliamentary Approval) Bill was a private member’s Bill introduced to Parliament under the Ten Minute Rule.  It was proposed by the late Tam Dalyell MP and had its First Reading on the 26th January 1999.  The aim of the bill was to make military action against Iraq by the United Kingdom contingent on approval by a simple majority on a vote in the House of Commons.  The bill therefore impinged on the Royal Prerogative in respect of waging war.  On the advice of the then Prime Minister Tony Blair the Queen withheld her consent for the bill to be debated.  The bill was bill 35 in the 1998/1999 Parliamentary session.  Its Second Reading was initially scheduled on 16th April 1999 but was postponed till 23rd July 1999 because of the absence of the Queen’s Consent.  On the 23rd July 1999 the bill fell at its Second Reading because the Queen’s Consent was still withheld.

The Reform of the House of Lords Bill 1990.

This bill sought to make the House of Lords an elected chamber. The Queen’s Consent was withheld on the advice of the late Prime Minister Margaret Thatcher, presumably on the grounds that the bill impinged the Royal Prerogative in respect of summoning Parliament.  This bill did not receive the Queen’s Consent on 26th January 1990, the date of its Second Reading and consequently the bill fell.  The bill had been proposed by Graham Allen MP.

The Palace of Westminster (removal of Crown Immunity) Bill 1988.

This bill sought to remove the employees of the Palace of Westminster from the jurisdiction of the Monarch, in order for these employees to have the statuary employment rights as employees in general.  The Queen’s Consent was withheld on the advice of the late Prime Minister Margaret Thatcher, presumably on the grounds that the bill impinged on the Monarch’s personal interests.  The bill therefore fell at its Second Reading on 8th July 1988.  The bill had been proposed by Joan Walley MP.

Prorogue Parliament.

Prorogation of Parliament means the ending of a session of Parliament.  Prorogation is usually carried-out in the context of an up-coming general election and the Queen prorogues Parliament on advice from her ministers.  Prorogation can also be used outside of the general election timetable, if the government of the day wishes to suspend Parliament’s activities.

The most recent precedent for prorogation outside of the general election timetable is Canada, in December 2008.  Six weeks before the Federal Elections had yielded a minority Conservative government.  In December the opposition parties decided to try and bring down the government by a vote of no-confidence, because they objected to the government’s proposed budget.  The Canadian Prime Minister, Stephen Harper, asked the Queen’s representative, the Governor General Michaelle Jean, to prorogue Parliament.  This the Governor General agreed to do, on condition that Parliament reconvene in January 2009.  The Canadian Parliament did reconvene on 26th January 2009 and the Conservative government’s budget was passed with the support of the Liberal Party.