I wrote recently on this blog about the issue of Royal Assent. This post concerns the wholly separate issue of Royal Consent which is a requirement for those rare Bills that would affect the royal prerogative.

The possibility of a no deal exit has led Yvette Cooper MP to propose a Bill, the European Union (Withdrawal) (No. 4) Bill (‘EUWA2019’) to mandate the government to delay exit day if no deal is agreed by Parliament. The latest iteration of the Bill can be found here. Previous iterations of EUWA2019 have either been dropped or Cooper’s proposal has been rejected by the House of Commons in a vote. Three Cabinet ministers have now publicly threatened to support the Bill.

Technically, Cooper’s Bill would be a Private Member’s Bill. As is well known, such Bills normally have no chance of passing without executive sanction because the Government controls the business of the House under Standing Order 14 which means that the necessary parliamentary time to pass such a Bill must be agreed by the Government.

Given Government opposition to her Bill, Cooper must persuade the House of Commons to suspend Standing Order 14 to allow time for her Bill to go through the parliamentary stages. In practice, amendments to Standing Orders can only be made on motions moved by a minister. This means that Cooper cannot initiate such a motion herself to ask the House to make time for her Bill by suspending the usual rules. Cooper can, however, seek to amend the motion that the Government has said they will table for debate on 12 March to secure the same outcome.

The key provisions of the fourth version of the Cooper Bill / EUWA2019

In brief, EUWA2019 would not apply if the Prime Minister’s deal has passed – s 1. If a deal has not passed by 13 March, the Act would give the Prime Minister the option of seeking the approval of Parliament for a no deal exit the next day – s 2(2).

Failing that, a motion must be moved by the Prime Minister which would mandate her to seek an extension of the Article 50 period until an unspecified date, although a proposed new exit date must be inserted into the relevant motion – s 2(3), s 2(4) and s 2(7). That new exit date would be amendable by the House by vote – s 2(8).

If the EU proposes a different date, provision is made mandating the Prime Minister to move a motion approving that date but permitting the House to mandate the Prime Minister to seek another date – s 2(10) and s 2(11). Finally, nothing in the Bill would prevent the Prime Minister from seeking an extension otherwise than in accordance with the Bill – s 2(12).

Unlike some earlier drafts, this version of the Bill no longer appears to fall foul of Standing Order 48 which states that only ministers can propose Bills that incur financial expenditure. This is because it does not require a minister to amend the domestic due date for exit which is set out in s 20(4) EUWA. The drafters of the Bill no doubt took the view that it was sufficient to mandate the Prime Minister to seek a new date at EU level. This would leave the Prime Minister to pick up the consequential legal pieces in domestic law by in effect forcing her to lay before Parliament an ancillary statutory instrument to change the date for domestic purposes if a new date is agreed with the EU at the international level.

The Bill is amendable by any MP. During a debate over one of the previous iterations of the Bill, the former Conservative Chief Whip, Mark Harper MP, rather pointedly asked whether such an amendment could include a provision mandating the Prime Minister to revoke notification of Article 50 in the event of no deal. This possibility was not denied. The recent case of Wightman in the CJEU confirms that unilateral revocation is possible at the EU level. There seems little doubt that the Government and its supporters will be implacably opposed to the Cooper Bill because such amendments could be made, as well as for other political reasons.

Royal Consent

In a blog in 2013 on this site, Tom Adam drew attention to a little known procedure in the House of Commons that deals with Royal Consent. It is important to make clear that Royal Consent is an entirely separate matter from Royal Assent. Royal Consent is a specific procedure that is only triggered, for our purposes, if a Bill affects the exercise of the royal prerogative (although there are some other more trivial circumstances where it can be triggered). This procedure has attracted serious academic criticism but nevertheless it undeniably still exists.

As Rodney Brazier (CLJ 2007) pointed out, ministers can recommend that Royal Consent ‘be withheld in relation to any Bill (in practice, a private Member’s Bill) which was unacceptable to them’ and ‘as long as the requirement of Queen’s consent remains… [it is] another way in which a Government could prevent parliamentary debate about legislation which did not coincide with that Government’s wishes’.

All Bills that affect prerogative powers must secure Royal Consent. As the Office of Parliamentary Counsel (pdf) (‘OPC’) make clear (at 5.2 and 5.16), formal Consent ‘falls to be signified’ by a Minister ‘nodding in response to a request from the Chair’ at the Third Reading of the Bill. The 11th Report of the House of Commons Committee states (at [10-11]) that where a Private Members Bill requires Consent, ‘the Member writes to the relevant Minister to ask the Government to arrange for Consent to be obtained’. The Member does not write to the Queen themselves. The Committee go on to address what would happen if Ministers do not want a particular Bill to be granted Consent. They say that ‘Ministers would tend not to advise the Queen… to withhold Consent: they would simply not seek Consent in the first place’.

One previous example of Royal Consent not being granted is highlighted by Tom Adam in his blog. In 2000, Tam Dalyell MP tried to place the prerogative power to declare war onto a statutory footing. Royal Consent was not granted. Brazier sets out a number of other examples ranging from the Peerage (Ireland) Bill 1868 to the Rhodesia Independence Bill 1969.

It is therefore necessary to consider whether EUWA2019 would affect the exercise of any royal prerogative because, if it does, ministers could prevent the passage of the Cooper Bill through Parliament by indicating that Royal Consent to the Bill would not be sought. Crucially, this would be an internal procedural matter within the House of Commons, thus avoiding the more formal and high profile involvement of the Queen that would occur were advice to be given to refuse Royal Assent after the Bill had passed both Houses, which I discussed in my previous post.

Would royal prerogative be affected by EUWA2019?

I have argued on this blog that the Prime Minister continues to possess the prerogative power to extend Article 50 using the royal prerogative of treaty making. This is because a brief extension to the Article 50 process would not, in my view, frustrate the intention of Parliament in EUNoWA or EUWA. It is important to distinguish the prerogative power, which is exercised at the international level, from s 20(4) EUWA, which is the statutory power to set exit day in domestic law. It is also crucial to distinguish a mere delay from the quite different issue of an attempt to revoke notification under Article 50 which would require fresh legislation – see here and here.

If it is accepted that the Prime Minister retains a prerogative power to extend the Article 50 process, the question then arises as to whether EUWA2019 would affect that prerogative power. To answer this question requires consideration of the abeyance principle laid down in De Keyser’s Hotel. In short, where a statutory power overlaps with a prerogative power then the prerogative is no longer available to the executive and is therefore suspended or goes into abeyance. Lord Parmoor laid out the essence of the doctrine in his speech in De Keyser.

When the power of the Executive…has been placed under Parliamentary control, and directly regulated by statute, the Executive no longer derives its authority from the Royal Prerogative of the Crown but from Parliament and, in exercising such authority the executive is bound to observe the restrictions which Parliament has imposed.

It is suggested that if the Bill is passed, the Prime Minister would no longer have the ability to use the treaty prerogative power either to seek an extension that was contrary to the terms of the Act or refuse to seek an extension, which is itself an aspect of the discretionary power encompassed by the prerogative. Instead, statute would have ‘directly regulated’ the exact same area and power.

Given the statute would mandate the Prime Minister to seek an extension for a specified period of time, it is further suggested that EUWA2019 would clearly ‘impose restrictions’ on the exercise of the relevant prerogative power. In those circumstances, it is suggested that the power under the prerogative to extend the Article 50 period would go into abeyance for the period governed by EUWA2019.

One potential counter argument could be derived from the terms of EUWA2019. Section 2(12) states:

Nothing in this section prevents the Prime Minister from seeking an extension of the period specified in Article 50(3) of the Treaty on European Union otherwise than in accordance with the provisions of subsections (1) to (11).

It could be argued that this section means that EUWA2019 would leave the prerogative power untouched because it specifically states that any other power to seek an extension is not precluded. This post respectfully disagrees with such an interpretation.

It will be recalled that mandating the Prime Minister to seek an extension would be wholly against her will. If s 2(12) EUWA2019 could be interpreted as leaving the prerogative power untouched, then the Prime Minister could theoretically try to circumvent the Act by announcing that she was seeking an extension of just one week, contrary to EUWA2019, using the prerogative power. The alleged justification for this would be on the grounds that s 2(12) expressly allowed her to continue to use the original power notwithstanding the provisions of the Act. Such an attempt would be directly contrary to the terms of the Act and would be a clear breach of the abeyance principle.

This hypothetical example demonstrates, therefore, that the original prerogative power to extend Article 50 would clearly be restricted and directly regulated by EUWA2019 such that the Prime Minister could not use the prerogative for the duration of the period eventually specified in the Act. Section 2(12) can only sensibly be read as leaving the original prerogative power unaffected once the other provisions in that section have run their course.

Conclusion

It would appear, therefore, that EUWA2019 would directly affect the prerogative and consequently the Cooper Bill must secure Royal Consent under long established internal House of Commons procedures requiring positive ministerial action and approval. This means the Government can prevent the Bill from passing by not seeking Royal Consent. It follows therefore that not only are there mechanisms available to the Government to ensure that the Cooper Bill falls, but, more importantly, the inevitably controversial decision to advise the Queen to refuse Royal Assent can be avoided.

The reason that these mechanisms and procedures are relatively unknown is because it is so rare for the royal prerogative to be affected by a Bill, particularly one to which the Government is opposed. If the Bill had been proposed or sanctioned by the Government, Royal Consent would obviously be a formality.

It is suggested, therefore, that notwithstanding the increasing political discussion around the Cooper Bill, the Government retains the ability to insist that the only choices available to Parliament, for as long as the Government remains in office, are: 1) the Prime Minister’s deal, or 2) no deal.

The author would like to thank Nikki de Costa, Colm O’Cinneide, Jack Simson-Caird, Stephen Laws, Henry Hill, Alison Young, Stephen Tierney and Gavin Phillipson 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, ‘Why Royal Consent Is Required for the Proposed Article 50 Extension Bill’, U.K. Const. L. Blog (25th Feb. 2019) (available at https://ukconstitutionallaw.org/))