Royal Prerogative Powers

The Times editorial (Saturday 9th March) postulated that if, as happened, Mrs May’s EU Withdrawal Agreement were defeated by the Commons on Tuesday, 12th March, sundry MPs would try to push back the date of our leaving the EU on March 29th [as defined in section 20 of the European Union (Withdrawal) Act (2018)].  This is seen by some Labour and Conservative MPs as a first step to “taking over the Brexit negotiation from Mrs May’s government”.

However, as any bill seeking to promote such a move clearly touches on one of the 15 Royal Prerogative powers (in this case the power to make international treaties) Mrs May, as Prime Minister, has sole power to advise Her Majesty the Queen to withhold her consent to allowing such a bill to proceed at 2nd or 3rd reading, which is plenty long enough for the 29th March to be reached and Britain therefore to leave the EU on time.

There have been three precedents during her reign for withholding consent to bills, of which the closest parallel is advice from Tony Blair to withhold consent at second reading for the “Action Against Iraq (Parliamentary Approval Bill) 1999”.  This provided for a parliamentary vote on going to war.

Alternatively, Mrs May can formally advise the Queen to prorogue Parliament anytime, certainly for a period long enough to get beyond March 29th.

There is an almost exact recent precedent, this time from Canada in 2008.  As a result of the General Election that year, the Conservatives led by Prime Minister Stephen Harper had to form a minority government, which was unable to pass its Budget after several attempts.  Harper formally advised the Queen’s Representative, the Governor-General Michaelle Jean, to prorogue the Canadian Parliament for about six weeks, which she agreed to do.  When Parliament reconvened on January 26th 2009, it passed the Budget with the support of the Liberal party.

Far from being a prisoner of the Commons, Mrs May as Prime Minister remains all-powerful on matters affecting the 15 Prerogatives after the vote on March 12th, as she is the only person who can give binding advice to the Queen.  Mrs May can also fire any of her Cabinet in a block who don’t agree and replace them, as Harold MacMillan did in 1962.  In short she can save herself, her party, and our country from her own disastrous agreement with the EU — if she has a mind to.

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