MPs opposed to a no-deal Brexit have now published their Bill. Robert Craig (LSE) explains why the existence of Queen’s Consent means that they face a complex legal Catch-22 in their efforts to stop the Prime Minister. This post has been updated after the MPs’ bill was made public.

MPs who wish to prevent No Deal have decided that their primary strategy is to bring forward a backbench Bill to delay UK exit from the EU. The model they are proposing draws on the experience gained earlier this year with the European Union (Withdrawal) Act 2019, commonly known as ‘Cooper-Letwin’. The new Bill faces some significant hurdles that make its passage a matter of some difficulty. It will be proposed by Hilary Benn, and the first supporter is Alistair Burt.

This post seeks to explore one of the major difficulties facing the new Bill, focusing on a long-standing procedure in both Houses called ‘Queen’s Consent’. Queen’s Consent must be sharply distinguished from Royal Assent. Unlike Queen’s Consent, Royal Assent is required for every Bill before it can become law, and is secured right at the end of the legislative process, after a Bill has passed both Houses.

Background

For our purposes, 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. The effect on the prerogative must be more than de minimis. If a ruling is required, the final decision as to whether Queen’s Consent is required is made by the Speaker. Normally it is the Clerk of Legislation who decides, in conjunction with his counterpart in the House of Lords. If necessary, the Clerks provide confidential legal advice to the Speaker for the purposes of his ruling.

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.

Queen’s Consent is normally a formality, because the government usually proposes (or more accurately for Private Members Bills, acquiesces to) all Bills that are successfully voted through both Houses. The current scenario could see a situation where a Bill passes in the teeth of trenchant opposition from the government.

Royal prerogative

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).

As part of the exercise of this prerogative, the UK agreed the Lisbon Treaty that created the Article 50 process for a country to leave the EU. The power to extend the Article 50 process, like virtually all legal acts conducted by the government at EU level, is not governed by any UK statute. Legal acts by ministers at EU level therefore remain, in almost all circumstances, exercises of prerogative power.

One exception to the normal legal basis for acting at EU level was the decision to notify the EU of the UK’s intention to withdraw. In the recent Miller case, the Supreme Court held that the normal prerogative power could not be used to trigger the process because it would frustrate the intention of parliament in the European Communities Act 1972 (‘ECA’) and other Acts. Following that decision, Parliament passed the European Union (Notification of Withdrawal) Act 2017 (‘EUNoWA’) which conferred on the government the legal power to trigger the Article 50 process for the UK.

It might be thought that EUNoWA would have required Queen’s Consent during its passage because the statutory power would appear to overlap directly with what would otherwise have been the previous terrain covered by the prerogative power. In fact, EUNoWA did not require Queen’s Consent. The reason is not wholly clear but it must be presumed that the very fact that the Supreme Court had held that, in the particular circumstances, the prerogative could not be used meant that the conferral of a statutory power could not actually ‘affect’ the exercise of the prerogative in reality. If an Act would affect the prerogative, even on one occasion, Queen’s Consent would be required.

Cooper-Letwin

The story behind the passage of Cooper-Letwin is more complex than many realise. 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 under s 1(2). 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.

A detailed analysis of the assumptions underlying the claim that seeking an extension is not itself an exercise of prerogative power is beyond the scope of this post. It rests on a contested view defended by Sir William Wade that unless the exercise of a prerogative has measurable legal effects, it is not in fact an exercise of prerogative power. This is a point on which scholars differ, but need not concern us here.

The sheer cleverness of the drafting of Cooper-Letwin rests on the fact that it left entirely open what would happen after the extension was ‘sought’. The negotiations and agreement of a new exit date were without doubt exercises of prerogative power and any Bill that sought to regulate or supplant those aspects of securing an extension would certainly have required Queen’s Consent during the passage of the Bill.

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 Speaker’s ruling

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 by the Speaker. That ruling made clear that the original draft of the Bill did not require Queen’s Consent.

As the House will recall, no Queen’s Consent was required for the contents of the European Union (Notification of Withdrawal) Bill, which was introduced in January 2017 after the UK Supreme Court decision in the Miller case. My ruling is that as no prerogative consent was required for the Bill in 2017 giving parliamentary authority to the Prime Minister to take action under Article 50 of the Treaty on European Union, there is no requirement for new and separate prerogative consent to be sought for legislation in 2019 on what further action the Prime Minister should take under the same Article 50 of the Treaty on European Union.

As we have already seen, the reason why Queen’s Consent was not needed for EUNoWA was arguably because the Supreme Court ruling meant that prerogative could not logically be affected by conferring a power to notify under Article 50. It is by no means clear that triggering the process and extending the process are legally equivalent just because they are encompassed in the same Treaty Article. They are not even in the same subsection. Notification was done under Article 50(2). Extensions are done under Article 50(3).

Indeed this exact, and crucial, distinction has very recently been explicitly confirmed by Lord Justice Hickinbottom in rejecting the English Democrats’ judicial review application on 19 August 2019. It must be noted that permission appeal decisions do not have the same status as formal Court of Appeal judgments, but it is the most recent and best evidence we have of the what the law is. Hickinbottom LJ drew a sharp legal distinction between the Miller case situation of triggering the Article 50 process and the quite different situation of extending the Article 50 process.

In short, international agreements (including agreements as to extensions of time under article 50(3)) are matters for the Government in the exercise of prerogative powers and although such powers can be displaced by Parliament this case is distinguishable from [Miller] because Parliament, in its various interventions into the withdrawal process or otherwise, has not arguably displaced those prerogative powers in respect of an extension of time under article 50(3). Indeed, Parliament has consistently made clear in the 2017 [EUNoWA] and 2018 Acts [European Union Withdrawal Act 2018], and especially clearly in the European Union (Withdrawal) Act 2019, that timing of withdrawal (including agreeing extensions to the withdrawal date under article 50) was and is a matter for the Government.

Hickinbottom LJ must be right. This decision can only be seen as highly persuasive that the legal basis for the power to extend the Article 50 process is a matter of prerogative power.

Incidentally, this judgment is also relevant to one possible reading of the Speaker’s ruling. EUNoWA conferred the power on the government to notify the EU of the intention of the UK to leave the EU. It said nothing about extensions.

1 Power to notify withdrawal from the EU

(1) The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

On one reading of the Speaker’s ruling, it might be thought that EUNoWA was being interpreted as conferring a general statutory power on the government to notify and the power to extend. Even taken in isolation, this would be a startling reading of EUNoWA because the wording of EUNoWA says nothing about extensions – it only mentions notification. However startling that may be as one possible reading, as a matter of law the proposition that EUNoWA confers the power to extend is now untenable after the decision of Hickinbottom LJ.

In addition, all the concerns raised by the courts in Miller that led to them finding that prerogative could not be exercised so as to frustrate the ECA (at [51]) disappeared after EUNoWA. This was because Parliament in EUNoWA made clear that leaving the EU was now the intention of Parliament. As I have argued elsewhere, a brief extension of the Article 50 process would not frustrate EUNoWA or any other Act.

The Speaker is neither a lawyer nor a judge so he cannot be criticised for a little lack of clarity in his very short statement, in particular as he was clearly acting on advice from the Clerk of Legislation. It goes without saying that the latter was undoubtedly acting in good faith and on a respectable view of the meaning and definition of the prerogative defended by many scholars. In short, there can be no criticism levelled at the Speaker or the Clerk of Legislation for deciding that ‘seeking’ an extension did not ‘affect’ the exercise of prerogative power as a matter of law.

House of Lords amendment

During the passage of Cooper-Letwin, the original bill was amended in the House of Lords to include a new section.

s 1(6) Nothing in this section prevents a Minister of the Crown from seeking, or agreeing to, an extension of the period specified in Article 50(3) of the Treaty on European Union otherwise than in accordance with this section provided that the extension cannot end earlier than 22 May 2019. (Emphasis added)

At first glance, this section reinforces the claim that Cooper-Letwin does not affect any prerogative. But the last few words create a problem. By mandating that the government could not agree an extension that ended before 22 May 2019, it could be argued that the later draft of the Bill certainly did affect the exercise of the prerogative because it prevented the Government from agreeing to an extension that ended before 22 May 2019.

If there were any doubts about the fact that s 1(6) would ‘affect’ the prerogative, s 1(7) lays them to rest.

s 1(7) In deciding for the purposes of subsection (6) whether an extension cannot end earlier than 22 May 2019, the earlier ending of the extension as a result of the entry into force of the withdrawal agreement (as provided for in Article 50(3) of the Treaty on European Union) is to be ignored. (Emphasis added)

There would have been no need for it to be made clear that the prerogative could be used to agree an earlier exit date under Article 50 in some circumstances if s 1(6) did not directly affect the prerogative in the first place.

As it happened, the government did not ask the Speaker for a further ruling on the new section inserted by the Lords, and the Bill passed without further incident. It is settled law that once a Bill has passed through both Houses and received Royal Assent, it is then too late to raise any possible difficulties over Queen’s Consent. It goes without saying that the government has to comply with the precise wording of any Act of Parliament.

The Benn-Burt bill

The issue of Queen’s Consent therefore raises a significant dilemma for those MPs who want to pass Benn-Burt to prevent No Deal by forcing the PM to agree another extension with the EU27 beyond 31 October 2019.

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.

In seeking such an extension, the PM might make clear that he was only doing so because he was legally obliged to do so. It may be that the PM could attach a series of demands to any extension he must seek such that the EU27 would be unlikely to grant one. He may indicate that he would do nothing with any extension except seek to count down the clock, or even disrupt EU business, or other ideas. Any or all of these strategems may cause negotiations for an extension to fail.

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.

What is most fascinating about this dilemma is that the Cooper-Letwin prototype gave such clear and unequivocal evidence of where the bright line on Queen’s Consent is actually drawn by the legal experts who understand, and indeed determine, these issues within the Commons. Can there be any doubt that if a stronger wording could have been secured without triggering Queen’s Consent then such a wording would have been used last time?

Ironically, the very narrowness of the drafting of Cooper-Letwin may be the poisoned arrow inadvertently fired into the Achilles heel of Benn-Burt.

There is a test that could help illustrate the boundary of what requires Queen’s Consent. Imagine if the government were to claim that the final wording of Benn-Burt as an Act did not in fact affect their prerogative power to negotiate, reject or deny any extension. In those circumstances, would an application be successful for a court order that mandated the government to agree an extension pursuant to the statute? If the answer is yes, Queen’s Consent is required.

Incidentally, a related problem would face any clause seeking to reverse or cancel the prorogation proclamation. To the extent that such a clause sought to restrict the PM from simply proroguing again, it would require Queen’s Consent. If it did not affect the PM’s ability to advise prorogation in the future, then reversing the proclamation by statute could be countered by the PM proroguing again, instantly.

Conclusion

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.

This post represents the views of the author and not those of the Brexit blog, nor LSE. The author would like to thank Gavin Phillipson, Peter Ramsay, Richard Ekins, Martin Loughlin and Tom Poole for their helpful comments on previous drafts.

Robert Craig is a part-time lecturer in Public Law at LSE. He is currently pursuing a PhD at Bristol University considering the role of the Royal Prerogative in the modern UK constitution.