We live in bizarre constitutional times. And tomorrow, Monday, 9 September 2019, is a particularly interesting day. Will the Surrender Bill obtain the Royal assent?
This question gives rise to issues which do not normally arise. Normally, the government controls the business of Parliament, such that bills do not get Parliamentary time without government support. Normally, the government enjoys a majority in the Commons, such that bills without government support are not passed. Normally, Parliament does not pass bills that defy the result of a referendum and are contrary to the election pledges of both major parties.
But these are not normal times. It is not unusual for the opposition to try to disrupt the business of the government of the day. That is true of both the main political parties, but is perhaps especially true of Labour Party oppositions; many Labour Party politicians resent Conservative politicians to the point of hatred. And it is not unprecedented for there to be groups of people who owe their principal allegiance, not to their own country but to a foreign power. The Babington plotters and the Jacobites in the 16th and 17th centuries owed their principal allegiance to Rome as the hub of Roman Catholicism, and in the 20th century the British communists owed their principal allegiance to Moscow as the hub of communism. Just as the Remainers now apparently owe their principal allegiance to Brussels as the hub of the European dream.
What is unprecedented is the unholy alliance between those two.
It is not the function of Parliament to seek to usurp the function of government. That is precisely what the Surrender Bill does. It even sets out the text of the required letter of surrender. And so, unsurprisingly, there is precious little useful precedent as to what the constitutional position is.
A fundamental feature of the current position is that Parliament is fundamentally ill-equipped to govern. A slow-moving process, whereby proposed legislation is mulled over by both Houses of Parliament, is necessarily incapable of exercising the speed, condifentiality and flexibility of the functions of government. That is why the normally efficient process whereby Parliament makes laws and the government governs has worked remarkably well for centuries. The Remainers are now seeking to turn this on its head.
It will not work. For the Parliament to try to micromanage government is like a battleship trying to play cricket. Hopeless. There are all sorts of ways in which the government can achieve the governmental objective of Brexit notwithstanding the Surrender Bill.
The first is that the Surrender Bill does not obtain Royal Assent tomorrow. If the Surrender Bill does not achieve Royal assent by the end of this session of Parliament (the beginning of next week) the bill will fail.
True it is that it is unprecedented constitutional ground. It seems that for into related questions arise:
- Should a government advise the monarch to give Royal assent to a Bill which has been passed by both Houses of Parliament, but with which it fundamentally disagrees?
- Whatever your answer to question one, is that answer enforceable by the courts?
- If the government advises the monarch as to whether Royal assent should be given to a Bill which has been passed by both Houses of Parliament, should the monarch follow that advice?
- Whatever your answer to question three, is that answer enforceable by the courts?
It is certainly a bizarre proposition that Boris Johnson, as Prime Minister and hence principal representative of the government, should advise the monarch to assent to something that he believes is so profoundly damaging as the Surrender Bill. One might or might not agree with his stance that the Surrender Bill is contrary to the result of the referendum, contrary to the pledges that have been given on countless occasions by both major political parties that they would respect the result of the referendum, and that it would cause immense damage to the United Kingdom, not only by profoundly damaging the UK’s prospects of obtaining an appropriate withdrawal agreement but also in terms of the damage done by continuing uncertainty and the costs attendant on EU membership. But there can be no doubt about this: that this is the prime minister’s position, and that he was elected to the leadership of the Conservative party, and hence to the office of Prime Minister, on the basis of that stated belief.
The question really boils down to this: is a Prime Minister obliged, not to give his honest advice to the monarch, but to give advice according to the wishes of the Houses of Parliament?
The answer appears to be “no”. It is well established that for a Bill to pass into law, three conditions must be satisfied. It must pass in the House of Commons. It must pass in the House of Lords. And it must receive the Royal assent. The last of these three conditions is a third hurdle, and it is only meaningful if there are sometimes circumstances in which it may not be cleared. For the reasons noted above, one has to venture into strange and uncharted water to find circumstances where this third hurdle matters, but having so ventured, it is hard to find a stronger case than this for a Prime Minister to advise against Royal assent.
As the saying goes, Parliament must have its say, and the government must have its way.
So, let us proceed on the basis that the advice of her Majesty’s ministers tomorrow is not to give Royal assent to the Surrender Bill. Can the courts intervene so as to require that advice to be reversed?
The first thing to note is that unless and until a bill receives the Royal assent, is not the law. And so there is no question of the government being forced to give any particular advice on the basis that that advice is compelled by the Surrender Bill.
Happily, the challenges mounted by the Remainers in both the Scottish and the English courts last week failed, the courts acknowledging that the Queen’s decision, based on the Prime Minister’s advice, to prorogued Parliament is a political matter, in which the courts should not interfere. It is likely that the courts would take the same view in relation to any advice given to the Queen. There are both constitutional and practical reasons for this.
As a constitutional consideration, it is simply not the role of the courts to tell the government what political decisions it should take. Unless something is contrary to an existing law, the government can govern as it likes.
As a practical matter, the Queen meets with the Prime Minister every week, and those meetings are governed by the strictest confidentiality. The courts are not in a position to know about advice given by the Prime Minister to the Queen or, for that matter, advice given the other way round.
so, let us consider the position where the Queen has received advice from her ministers not to give the Royal assent to the Surrender Bill, and the courts have not compelled a reversal of that advice. What should the Queen do? It is a matter that has been considered by constitutionalists a number of times over the years. Their opinions were reviewed earlier this year by Robert Craig in his analysis for the Constitutional Law Group Could the Government Advise the Queen to Refuse Royal Assent to a Backbench Bill? His conclusion is thus:
Where the Queen’s duty lies in these circumstances is contested. The better view is probably that she must follow the ministerial advice.
I think he is probably right. Constitutional monarchy has served the United Kingdom very well for a long time, and a key component of that success is that the monarch does not get involved in party politics. Instead, the monarch follows the advice of his or her ministers. The electoral system ensures the democratic legitimacy of her ministers. It is not for the monarch to look behind the advice of her ministers.
The fourth question is whether the courts could or should intervene, so as to require the Queen to disregard her ministers’ advice.
This is perhaps the easiest of the four questions. The answer is plainly “no”. The function of the courts is to adjudicate on the effect of the law, not to require laws to be made.
Pulling the threads together
So, where does all this leave us? Will the government advise the Queen tomorrow not to give Royal assent to the Surrender Bill? That would certainly be a ballsy thing to do, but it does appear to be an option.
They say that when Boris Johnson was a child, he announced that he wanted to be king of the world. That was, you might say, an ambitious target. But it would perhaps be surprising if he strayed so far from that ambition as to advise the Queen to surrender to a foreign power. Without a shot being fired.
 The European Union (Withdrawal) (No. 6) Bill 2019