Bill to Stop No Deal Brexit Passes Lords: Legal Challenge May Come Monday
Royal Assent is the final step in which a parliamentary bill in the UK becomes law.
The Guardian Live reports
"A bill designed to stop Boris Johnson taking the UK out of the EU on 31 October without a Brexit agreement has cleared the House of Lords, and it is set to become law on Monday when it is due to get royal assent. The bill is thought to be legally watertight, and it seems to have closed off the option of Johnson forcing a no-deal Brexit at the end of October"
I note the word "due" and "thought".
It's not guaranteed. Boris has options if he wants to use them, especially in regards to "thought".
One of his options is simply to ask the Queen to deny Royal Assent. A second is to deny Queen's Consent. The latter has a different legal context but in essence does the same thing. Simply put, the bill may not be watertight.
I will explain the difference below once again (this time shorter) but first let's look at another take.
We have yet to understand why team Johnson is not frustrating the anti-Brexit legislation through one of the means we have outlined in recent days. The media are silent on this point. If readers have any information on this particular point, we would like to hear it. Maybe they received legal advice. Or they concluded that any further involvement of the Queen would backfire. It is also possible - in theory - that they have a better plan, but we should probably not overestimate their strategic acumen. They certainly did not game the election scenarios carefully enough. The two-thirds majority threshold in the fixed-term parliaments act was always, and remains, formidable.
So what can Johnson do apart from cranking up the rhetoric, like the pledge that he'd rather die in a ditch than ask for an extension? What will he do when the request for an extension is the law?
Another option for Johnson is to defy the Brexit bill, and risk being impeached by parliament. This is what Robert Peston was suggesting yesterday. Impeachment in the UK is an ancient procedure to try individuals for high treason that is now considered obsolete, in contrast for example to the US. But would it not be easier for parliament to launch a vote of no-confidence and install Jeremy Corbyn in Number 10? We presume that the LibDems might hold their nose, but maybe not all opposition MPs would support Corbyn.
A third possibility is for Johnson to find some way for the EU to reject the extension. This is probably the smartest choice, but requires a strategy the UK has not yet deployed. The UK could refuse to comply with EU demands attached to an extension, like appointing a European Commissioner. The UK could co-opt another member state ready to wield a veto - maybe against the promise of preferential treatment for its citizens after Brexit. Maybe Johnson could tell the European Council that the request for an extension was forced on him by his parliament, and that the European Council would risk a very disturbing period unless they refuse this reluctant request.
Puzzled at Eurointelligence Puzzlement
For the moment, I am puzzled why Eurointelligence is puzzled.
"We have yet to understand why team Johnson is not frustrating the anti-Brexit legislation through one of the means we have outlined in recent days. The media are silent on this point."
Eurointelligence is making an assumption that Boris will not pursue one of the options it laid out. But why would Johnson tell the opposition in advance what it would do?
A bill that passes Parliament only becomes law only with the Queen's blessing. This is normally a formality simply because passed legislation is nearly always from the government.
Queen's Consent regards the rights of government to conduct international negotiations.
I discussed the difference between Royal Assent and Queen's Consent at length yesterday in Another Weird Brexit Turn: Tories Vote to Support No Deal Bill in House of Lords.
Eurointelligence Comments Yesterday
Government could, for example, withhold Royal Assent. The legal expert Robert Craig recalls yet another arcane procedural requirement. It is called Queen’s Consent which - if you can believe it - is different from Royal Assent. Queen’s Consent relates to legislation that shifts the royal prerogative - in this case the right of the Crown, and the government as its agent, to conduct international negotiations
Eurointelligence appears to have concluded Johnson has not and will not pursue either of those options even to the point of stating "The media are silent on this point. If readers have any information on this particular point, we would like to hear it."
I have no information other than the obvious, which Eurointelligence ignored.
What's the Obvious?
- Until the Bill receives Royal Assent it is not law.
- The Bill has not received Royal Assent yet.
- We do not know what Johnson's strategy is.
- We will only know that Johnson has ruled out an attack on Royal Assent or Queen's Consent if and when the bill get's Royal Assent, Johnson formally issues a legal challenge, or asks the Queen for a delay to allow the Government to study the legality of the bill.
Eurointelligence Jumped the Gun
That Eurointelligence jumped the gun based on point number 4 above.
That does not make the end result wrong as Johnson may simply decide not to go down those paths.
But even if correct (in the final result) Eurointelligence made a logic error. Johnson has not yet ruled out the options.
Those options were first discussed by Robert Craig , then Eurointelligence, then me, with otherwise media silence.
Direct Royal Assent Attack is Risky
A Royal Assent attack (asking the Queen to not accept the Bill would be very risky. Johnson would need a reason or he could create a legal crisis of some kind.
On the other hand, asking the Queen for a short delay that would allow Government to study the legality of the bill seems quite reasonable.
I believe the Queen would undoubtedly go along if Johnson explained the nature of the challenge to the Queen's legal team.
With that, let's return to the legal issue.
Queen's Consent Attack
Legal expert Robert Craig (LSE) writes Proponents of the new Bill to stop No Deal face a significant dilemma over Queen’s Consent.
Emphasis Mixed - Some Craig's, Some Mine
Queen’s Consent is a procedural requirement for any Bill passing through the Commons and Lords where the terms of the Bill would ‘affect’ the exercise of any royal prerogative if it was passed.
If a Bill affects prerogative, a minister must explicitly confirm that the government agrees that the Bill should pass. This formally happens in the Commons at the Third Reading stage. If the government does not want the Bill to proceed, its refusal to indicate its approval at Third Reading is fatal for the Bill.
Prerogative powers are legacy powers of the Crown that are now mainly exercised by the government. Conducting foreign affairs, and in particular the power to agree treaties and operate treaty powers, is an important part of the prerogative and is the relevant power for this post. Under that power, the UK government has agreed new treaties, and particular laws, at EU level over the last 46 years (and indeed continues to do so).
The story behind the passage of Cooper-Letwin is more complex than many realize. The drafting of the original version was masterly. Cooper-Letwin mandated the then Prime Minister (PM) to seek an extension to the Article 50 process. The word ‘seek’ is crucial. The reason it is so crucial is that it allowed the argument to be made that Queen’s Consent was not necessary for the Bill. This was because to ‘seek’ an extension does not actually have any effect in terms of changing the date of exit at EU level. Seeking an extension arguably does not ‘affect’ prerogative exercise as a matter of law.
In fact, the PM sought an extension before Cooper-Letwin had even passed so the second extension from 12 April to 31 October was in fact secured solely through the normal exercise of prerogative power. Indeed, the first extension, from 29 March until 12 April was also done entirely using prerogative power.
The issue of Queen’s Consent was taken very seriously during the passage of the Cooper-Letwin Bill and was so controversial it resulted in a [formal ruling](https://hansard.parliament.uk/Commons/2019-04-03/debates/0F559E56-033F-4F8F-B10F-4DAE45A91997/EuropeanUnion(Withdrawal%29(No5%29Bill) by the Speaker. That ruling made clear that the original draft of the Bill did not require Queen’s Consent.
If Benn-Burt had precisely followed the format of Cooper-Letwin and only mandated that the government seek an extension, then it would have placed no obligation on the PM to agree or accept any extension. That would remain part of the prerogative power to be exercised as the PM sees fit in his negotiations with the EU27.
However, Benn-Burt goes much further than Cooper-Letwin. It mandates that the PM must not only seek but also agree to an extension, either 31 January 2020 or another date if the Commons approves a date suggested by the EU27. Mandating that the PM agrees to an extension manifestly affects the prerogative. It is difficult to see how requesting Queen’s Consent can be avoided for this Bill. If so, it follows that the government must agree to the Bill being passed during Third Reading.
The proponents of a new Bill to prevent No Deal are caught on the horns of a dilemma. If they had drafted a Bill that only mandated the PM to seek an extension, the PM would be left free to refuse to agree or accept any extension in negotiations with the EU27.
But the actual Bill tries to impose a requirement that the PM either agrees to 31 January 2020 or agrees any new exit date suggested by the EU27 (as long as a motion approving the alternative date in the House of Commons is passed). House of Commons procedural rules mean that the government is required formally to approve the Bill by affirming ‘Queen’s Consent’ to the Bill at the Third Reading stage. This is because the power to agree or accept an extension is normally exercised using a prerogative power. If passed, this statute would have the legal effect, by whatever means, of forcing the PM to agree an extension to the Article 50 process would manifestly ‘affect’ the prerogative for the purposes of the relevant test as to whether Queen’s Consent is required.
Queen's Consent Required
I am not a lawyer, but that opinion from legal expert Robert Craig seems airtight.
That said, it is possible Johnson made a mistake. Let's return to a couple of Craig Statements.
- It follows that the government must agree to the Bill being passed during the Third Reading.
- House of Commons procedural rules mean that the government is required formally to approve the Bill by affirming ‘Queen’s Consent’ to the Bill at the Third Reading stage.
The government certainly did not give Queen's Consent at the third reading.
Legal Question of the Day
What happens if the government does not object and the bill moves on? Is that giving consent?
If so, the Johnson team made a major, major mistake.
Still, a legal ruling on this can drag on for a long time if Johnson asks the queen for time to study legal rulings.
It would be to Johnson's advantage to delay having to give precise reasons publicly until the last moment.
Mistake Made Somewhere
It seems that somebody made a mistake. At this point we do not know if it was Benn or Johnson.
There is a third possibility: Benn knew the bill was lot legal (purposely making a mistake) and hoped that it would slip by Johnson.
Here's the fourth possibility: Johnson and Benn both knew the bill is not legal with Benn taking a chance Johnson would not catch it and Johnson figuring he could legally challenge it later rather than sooner.
We find out more on Monday.
Mike "Mish" Shedlock