No-Deal Brexit Bill- Can the Prime Minister Interfere with Royal Assent? Would He Dare?

As the Bill to delay Brexit in the event of no deal works its way through the second House of Parliament, can or will the Prime Minister look to the third branch of Parliament, the Queen, to kill the Bill at Royal Assent?

On September 3 the House of Commons took over the legislative agenda from the UK government in order to introduce a Bill to stop the UK from “crashing out” of the European Union on October 31 without an Agreement with the EU.  The Bill would require the UK government to seek an extension of the leave date until January 31, 2020 if an Agreement with the EU is not reached by October 19.  The Bill passed the House of Commons over the objection of the government.  The government was so incensed that the Prime Minister withdrew the conservative whip from over twenty members who broke government ranks and voted for the Bill, effectively expelling them from the party. The Prime Minister then attempted to engineer a vote to dissolve Parliament and have an immediate election.  This failed. The Bill now moves to the House of Lords where many Conservative Lords are attempting to delay passage until prorogation (which can be as early as next Monday) by introducing numerous amendments and causing a series of votes.  If the Bill does not receive Royal Assent before prorogation, it will not become law.

Given the almost virulent opposition to the Bill and the looming prorogation, the question arises as to whether the government will attempt to take steps to delay Royal Assent before prorogation, or even advise the Queen to not grant Royal Assent.   If either course is taken, there would no doubt be a parliamentary uproar that would result in some form of confidence motion triggering an election, but the Bill will still have died on the order paper without becoming law.

There is no doubt that such a manoeuvre would be unprecedented and create what many might see as yet another constitutional crisis; so, the question posed above may become more than academic.

It is seldom that one is required to consider that Parliament is composed of three distinct actors: the House of Commons, the House of Lords (the Senate in Canada) and the Queen.  Each has an independent role to play in the legislative process and all three must agree on any enactment.  Usually there is no need to even think about the third player, the Queen, who grants royal assent to any Bill presented to her for Royal Assent.  This is because the overwhelming majority of Bills originate with the government (formally Her Majesty’s government) and there is little question that the government will present its Bills to the Queen for Assent with the implicit “advice” that she grant assent.  The last time that any monarch tried to exercise independent judgment and refuse royal assent was in the reign of Queen Anne.

What is to occur when Parliament passes a Bill and the government does not want the Bill to become law?  Can the government delay or block its presentation to the Queen? Can the Bill find its way to the Queen by other means than by government initiative and if the Bill does get to the Queen, can the government advise the Queen not to grant Royal Assent? Does the Queen have to follow the Prime Minister’s advice?

The problem presents itself because the Queen has two sources of advice that she is usually obliged to follow.  On the one hand convention requires that the Queen only act on the advice of the Prime Minister (or Privy Council) and she must, unless precluded by law, follow that advice.   This would suggest that the Prime Minister could advise the Queen to not grant Royal Assent. Or, if not wanting to put the Queen in such an unenviable position, take steps to delay having the Bill presented to her before prorogation.  On the other hand, when acting in her legislative capacity, Bills come to her, not on the advice of the government on the advice of the two Houses.  For example, in the present case, like all Bills, the opening salutation of the Bill states:  ” Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same …”

Before presenting Her Majesty with this dilemma, the question arises as to how Her Majesty would be advised that a Bill has been passed through the two Houses.  Usually one would expect that arrangements would be made through the Privy Council Office.  But what if this process were somehow delayed?  Could the Speakers jointly advise the Queen of the proceedings and seek her Assent without the involvement of the Privy Council?

Even assuming the Bill finds its way to the Queen in the usual course, or through some other formal means, could the Prime Minister still advise the Queen not to grant assent?  Would the Queen be obliged to accept that advice, or would She be required to accept and follow the advice of the two Houses assembled in Her Parliament?

The opinion of academics seems to be divided. On one side are those who hold fast to the notion that the Queen only acts on advice of Prime Minister, and that in such a case the Queen should refuse Royal Assent and allow the political process of a subsequent motion of non-confidence to follow the giving of such advice (i.e. a motion holding the government or Prime Minister in contempt of Parliament), ultimately leading to a decision by the electorate on the question.

Others, like me, are of the view that the Queen, when granting Royal Assent, is not carrying out an executive function, but a legislative one.  Her role and “loyalty” in the legislative process is to Parliament.  The two Houses are her advisors on law-making.  The making of law is quite different from making executive decisions pursuant to law or prerogative on which the Queen takes advice from the Prime Minister.

One hopes that the Prime Minister will accept the decision of Parliament and, if the Bill is passed by the House of Lords, will take the necessary steps to ensure that the will of Parliament is respected by having the Bill presented to the Queen to received Royal Assent before prorogation.  This will avoid creating yet another “constitutional crisis” or putting the Queen in the unenviable constitutional position of having to choose between the advice of Her Prime Minister, or that of the Parliament of which she forms a crucial third part.

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