Introduction

As is well known, the Government’s Withdrawal Agreement was voted down in Parliament last week by 230 votes in a ‘meaningful vote’ mandated under s 13(1) of European Withdrawal Act 2018 (‘EUWA’). This led to the Opposition tabling a formal vote of no confidence in the Government under the Fixed-term Parliament Act 2011 (‘FTPA’). This is the first formal no confidence motion tabled for a quarter of a century. The motion was defeated by 325 votes to 306 votes. The survival of the Government despite the rejection of the central plank of its programme has led one leading commentator to describe the Government as ‘in office without being in power’.

For some MPs, notably the ERG group of backbench Conservative MPs, the rejection of the Withdrawal Agreement is unproblematic. This is because, as a matter of law, Parliament gave its approval to Brexit when it passed the European Union (Notification of Withdrawal) Act 2017 and confirmed that approval when it legislated in the EUWA for the United Kingdom to leave the European Union on 29 March 2019. From a strictly legal perspective, Brexit will happen on that date by automatic operation of law unless the law is changed and extension is agreed with the EU27. This would happen with or without a deal.

It is clear that, from a purely political perspective, there is no majority in Parliament for an automatic exit from the EU without a deal. The Prime Minister has stated repeatedly that there are only three options in her view: 1) Approval of the Withdrawal Agreement 2) No Deal 3) No Brexit. Part of her pitch to MPs before the ‘meaningful vote’ was that if it was voted down, Brexit could be stopped by MPs opposed to leaving the EU. As an aside, nothing in this post should be read as an endorsement by the author of any of the three options, or any other options.

No Brexit

There is considerable evidence that a plan either to delay or to suspend the Brexit process by changing the law is indeed being formed. On the Andrew Marr programme, Hilary Benn claimed that far from being ‘plotters’, MPs who were taking steps to prevent a No Deal exit were simply ‘doing their job’.

Some MPs have taken advice from clerks of the House on a bill that would prevent a No Deal exit. A number of potential draft bills have been published, for example the European Union (Withdrawal) (No. 2) Bill, from Nick Boles MP, which would mandate the Government to seek an extension of the Article 50 process to 31 December 2019. Yvette Cooper MP has proposed another.

Under normal circumstances, any such bill would have no chance of passing into law because the Government controls the business of the House of Commons and could prevent any such bill from being passed. However, backbench MPs have the power to change the rules laying down the procedures of the House of Commons, which are governed by a series of Standing Orders, if they can secure enough votes from MPs to make those changes.

Standing Order 14

The rule that government business must be given priority was instituted in the House of Commons over a century ago following a previous example of serious political disagreement in parliament in the 1880s. Standing Order 14(1) is unequivocal.

Save as provided in this order, government business shall have precedence at every sitting.

This rule reflects an important and basic constitutional principle which is that parliament must have its say but the government must get its way. It is the government that runs the country, not parliament. We have a system of parliamentary government, not a system of parliamentary rule. Conversely, the government is severely constrained by the fact that it must always retain the confidence of parliament. This dynamic relationship is at the heart of the political constitution of the UK. The dynamism is reflected in the fact there can be changes, even significant changes, in the extent to which the House of Commons exerts itself over the executive.

The Dominic Grieve amendment

Following another amendment last week, the Government returned to the House of Commons on Monday 21 January to table a ‘neutral’ motion under s 13(6) EUWA following the defeat of its deal under s 13(1) EUWA. One leading backbench MP, Dominic Grieve QC, has proposed an amendment to the motion that would alter Standing Order 14 such that any

Motion in connection with the United Kingdom’s withdrawal from the European Union in the name of at least 300 Members of the House elected to the House as members of at least five parties and including at least 10 Members elected to the House as members of the party in Government shall stand as the first item of business.

Further, the amendment requires that any such Motion shall be proceeded with until it concludes notwithstanding any other Standing Orders.

The effect of the amendment to Standing Order 14

If the amendment passes, then a door potentially opens to a backbench bill that might be piloted through the House of Commons as long as it is ‘in connection with the United Kingdom’s withdrawal from the European Union’. Stephen Laws has argued that further procedural changes of other Standing Orders would be necessary, however, to get it through.

If such legislation is eventually passed by Parliament, it could result in significant changes such as mandating the Government to seek an extension from the EU27, legislating for a second referendum or mandating the Government to revoke the Article 50 notification which the CJEU recently held was possible in EU law without agreement of the EU27 in the case of Wightman.

One useful side effect of these discussions on changing the law is that it now appears to be generally agreed that it is not possible to revoke the Article 50 notification without fresh legislation as I argued a year ago on this blog, and as was also argued more recently by others. I also argued recently on this blog that seeking an extension could be done using the royal prerogative. If a statute mandated the government to seek an extension, that would obviously put the relevant prerogative into abeyance to that extent.

Whilst much attention is naturally being focused on the machinations that could lead to a backbench bill being passed through the House of Commons, much less attention is being paid to the other two stages through which a Bill must pass to become law. The second stage is that it must be approved by the House of Lords. The chances of the House of Lords delaying or blocking such a bill seem low.

Royal Assent

The third stage of legislation is normally a formality. It is that the Crown must agree to the legislation through the prerogative of Royal Assent. After all, the sovereign body in the United Kingdom is not Parliament, it is the Crown-in-Parliament. As every first year law student knows, the last time Royal Assent was refused was in 1708 under Queen Anne when the Scottish Militia Bill was rejected on the advice of ministers, according to Munro (54). In 1914, George V very nearly withheld his assent to the Irish Home Rule Bill but was persuaded not to, again on ministerial advice.

The general rule is that prerogatives are exercised by the monarch on the advice of the government, and in particular the Prime Minister. At first sight, therefore, it might appear that all of the work done by backbench MPs might be to no avail because even if they manage to pilot a bill through the House of Commons and the House of Lords, the Government could simply advise the Queen to refuse Royal Assent to the bill.

Anne Twomey states that in relation to royal assent ‘the predominant academic view… is that the Sovereign… must act upon the advice of responsible ministers’ (The Veiled Sceptre 622-3). She uses the example of where a new government that has the confidence of the House and ‘objects to a bill passed… by a defeated predecessor… then its advice to refuse assent to a bill should be accepted’ (624). Elsewhere she argues that where a ‘serious error is discovered in the bill’ then refusal of assent may properly be advised (643).

Twomey is therefore crystal clear that the ministerial power to give advice on royal assent has not fallen into desuetude (30-35). Royal assent is not an exception to the general rule that prerogatives are exercised on advice. Munro agrees, arguing that the more accurate ‘formulation’ may be: ‘the Crown cannot refuse assent except on advice’ (82).

Twomey gives examples of the fact that the ‘Sovereign has… frequently and recently refused assent to bills passed by the legislatures of British colonies’. Even the British Government has advised refusal – and recently. It prepared to advise the Sovereign to refuse royal assent for a bill from New South Wales in 1980 which forced the NSW Government to let it lapse to prevent a formal refusal (638). Royal assent is not automatic.

Adam Tomkins is unequivocal on the central point.

If the monarch were given clear and firm Prime Ministerial advice that she should withhold her royal assent to a Bill which had passed through the Houses of Parliament, it seems to be the case that the monarch should follow that advice. (Public Law, 63-64)

Rodney Brazier argues that the ‘only circumstances in which the withholding of royal assent might be justifiable would be where the Government itself were to advise such a course’ (de Smith & Brazier Constitutional and Administrative Law 127). Brazier’s says elsewhere (LQR 2013) that ministers might advise the Queen to refuse assent where ‘a private member’s bill had passed both Houses, perhaps on a free vote but which ministers opposed’. Twomey suggests that this scenario is ‘more likely to arise in a hung Parliament’ (624).

Twomey also points out that Lindell ‘has given some of the closest attention to this issue’ and he makes the important point that in the end parliament ‘can move a vote of no confidence’ if assent is refused. Further, Lindell ‘recognises the potential clash between’ representative and responsible government but

concluded that “the Australian Constitution embodies only a particular form of representative government known as responsible government”. The implication appears to be that where they conflict the elements of responsible government override those of representative government (625). (Emphasis in original)

Twomey makes clear that, in her view, the confidence of parliament is key, arguing that ‘ministers must maintain their status as responsible to Parliament in order to be entitled to give that advice’ (625). This must be right. The doctrine of confidence is one of the absolutely core doctrines of the UK political constitution.

Much of the academic analysis of this issue is tinged with some unreality, as Brazier points out, because it is so difficult to envisage a situation where a bill could pass through two Houses without government approval. Truly, Brexit is the constitutional gift that keeps on giving.

Counter-arguments

On the other hand, Twomey raises questions of the distinction between representative government and responsible government. The legitimacy of MPs is a function of the former (through representative elections). The legitimacy of ministers is a function of the latter (through ministerial responsibility to parliament). Normally there is no tension between the two but when there is a clash, she points out that ‘in the case of a hung Parliament, if a bill of significant importance were passed against the wishes of the government, doubts would arise about the responsibility of ministers and whether they were entitled to advise the refusal of consent’ (624).

Nick Barber, writing presciently on this blog in 2013, suggests that in an era of regular minority governments and the FTPA, refusal of royal assent could one day be a live issue. Barber connects royal assent to the representative government narrative.

But does this reason justify the inclusion of royal assent within the group of prerogative powers that are exercised on ministerial advice? It is hard to see that it does. Now the convention is operating against democratic values, rather than upholding them… In short, when presented with a bill that has passed through Parliament in a proper manner, the duty of the Monarch is to give assent – irrespective of the advice of her Ministers. There is no room for discretion.

Twomey herself suggests that the Queen could disregard the government’s advice on a bill it disagreed with because ‘the government is no longer responsible, due to its defeat on what must be regarded as an important legislative measure… and the head of state is not obliged to accept the advice of ministers who have ceased to be responsible’ (646). Mark Elliott agrees.

Twomey also says the likelihood of this kind of scenario arising is ‘slim’ because those who passed the bill ‘could vote no-confidence’ in such a government. Such a scenario would be unlikely ‘unless it was clear that no alternative government could be formed and a dissolution was undesirable’ (647). It is difficult to see how these kinds of criticisms could apply to the current government which has just had its mandate from parliament confirmed when it won the recent no confidence motion.

Constitutional thin ice

It is astonishing to be living at a time when the Government could conceivably advise the Queen to exercise a prerogative that has not been used for 300 years. Furthermore, it could only happen if the House of Commons voted to suspend rules of procedure that have been in place for nigh on 150 years. We live in interesting times. It is worth pointing out, however, that even in the UK the issue of executive veto is not confined to ancient law. It will be recalled that the assent of the Crown is built into the UK devolution regimes.

The UK parliament has long been a predominantly policy-influencing legislature. The USA system, by contrast, has a predominantly policy-making legislature coupled with an executive veto. This is a further reason why the moves by backbench MPs to propose and pass bills should perhaps cause us to raise a constitutional eyebrow. The UK legislature appear currently to be edging closer to setting policy rather than influencing policy and is thereby in danger of testing the limits of long-standing and accepted constitutional norms. This may precipitate ripple effects analogous to the executive veto in the USA.

There has been far too much talk of a ‘constitutional crisis’ in the Brexit debate so far but as the exit deadline looms, it may be that a genuine crisis may yet occur. The Queen must not be drawn into the political realm by being forced to decide whether to accept ministerial advice to refuse royal assent to a bill. As Twomey points out, ‘reserve powers’ usually operate in the background and ‘operate as an incentive to appropriate behaviour by politicians’ (32). She quotes MacKinnon as describing them as ‘like a fire extinguisher – often never used but there in an emergency’ (33). It is to be hoped that these incentives prevent the Queen being put into a potentially awkward constitutional position. This approach must be the starting point for the relevant political actors.

Conclusion

Although Twomey makes clear that the majority of academic opinion believes that royal assent can be refused on ministerial advice, there is not a consensus on what should happen when these kinds of exceptional circumstances occur. A clash between representative and responsible government raises deep questions of constitutional theory. Are ministers temporary and junior delegates of a supreme parliament or is parliament’s role simply to clothe ministerial policies in legitimating legal garments? The questions connect to the contested status of royal assent and whether it is a legislative power that is triggered by successful passage of a bill through the two Houses or an executive power effectively in the hands of the government.

Where the Queen’s duty lies in these circumstances is contested. The better view is probably that she must follow the ministerial advice. The Queen could not legitimately be criticised for following the advice of a Government that has the confidence of Parliament. All criticism ought to be directed at her Government which is democratically accountable to Parliament and whose constitutional role is to absorb such criticism instead of the monarch.

The Queen could, however, be criticised for not following such ministerial advice. Whom could disappointed elected MPs hold to account if the Queen failed to follow formal ministerial advice in the exercise of a royal prerogative? Bearing the brunt of criticism that would otherwise be directed at the monarch is possibly the most ancient function of ministers. Removing that possibility would breach norms that have stood for centuries and would be a genuine failure of democracy and accountability.

It is suggested that elected politicians must strive to avoid the scenario contemplated in this post from happening in the first place and it is to be hoped that a negotiated solution can be found in the House of Commons to ensure that even the possibility of a genuine constitutional crisis is avoided.

The author would like to thank Paul Craig, Stephen Laws, Carl Gardner, Colm O’Cinneide and Alison Young 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, ‘Could the Government Advise the Queen to Refuse Royal Assent to a Backbench Bill?’, U.K. Const. L. Blog (22nd Jan. 2019) (available at https://ukconstitutionallaw.org/))