Queen’s Consent necessary for Bills on Treaty making

It is astonishing that Speaker Bercow’s assertion that the latest anti-Brexit Bill did not require Queen’s Consent (QC) to go to Third Reading on Friday night (6/9/19), went unchallenged in the Courts. (See Stephen Bush’s bannered Daily Telegraph letter of 10th August citing Tony Blair’s withholding of QC to block Tam Dalyell’s Bill to prevent the Iraq War [1999-2000 session].) 

If Gina Miller et al can seek to claim that the Prime Minister’s binding advice to the Queen to prorogue parliament from a date between Monday 9th and Thursday 12th September was somehow illegal, ultra vires, then Bercow’s repeated decisions in favour of any Bill seeking to wreck or delay Brexit must also be challengeable. 

The source of Bercow’s confidence in declaring that this latest anti-Brexit Bill (Hilary Benn) did not need Queen’s Consent to proceed to Third Reading can be traced to his assertion that he had taken “expert” advice on the Cooper-Letwin Bill (Withdrawal Act Amendment No 4) from someone called the “Clerk of Legislation”. 

This individual in turn apparently cited the fact that the Article 50 “trigger” Act of March 2017 was judged by this same individual, or his predecessor, not to need Queen’s Consent on the curious grounds, that although Article 50 was indisputably concerned with an international treaty (Lisbon) saying we were leaving, it “didn’t require the UK to actually do anything”.  This clearly contradicted the essence of the Supreme Judgement[1] in the Miller case only 2 months before.  Moreover the Withdrawal Act of 26th June 2018 itself received Queen’s Consent before 3rd Reading, presented by David Davis (Hansard of 17th January 2018, column 1002). 

What is crystal clear is that the Benn bill clearly falls right into the sphere of the Royal Prerogative requiring Queen’s Consent to proceed to 3rd Reading.  It is amazing that the Prime Minister has not tried to uphold this obvious fact.  Failing to get Bercow to agree would have been followed by immediate recourse to the High Court demanding the Bill should receive Queen’s Consent before being proceeded with on the grounds that it clearly infringes the Royal Prerogative without there being any legislation for this. 

Many (most) on the Brexit side outside Parliament feel that the anti-Brexit brigade have made all the legal and procedural running in the battle for Brexit.  It is simply absurd that the Benn Bill with its exact prescription of what a British Prime Minister should actually write to a foreign power, under a precisely prescribed timetable should not be challenged in the Courts or put to the electorate.  Two should be able to play that game.  This Bill can be delayed from Royal Assent[2] , even now on Monday 9th September, until at the very least its lack of Queen’s Consent has been exposed in the Courts. 

Footnotes

 [1]  In essence the Supreme Judgement was that because triggering Article 50 affected domestic legislation (through ECA 1972) as well as  external treaty making, the royal prerogative was not sufficient justification in itself:  Parliament had to be involved, thus upholding the core of Miller’s case, but didn’t alter the role of the royal prerogative. 

[2]  In the past, weeks have elapsed sometimes between passing Third Reading and sending to the Palace for Royal Assent.  Anything to hold it up would do.  But the Prime Minister would have to positively stop it going to the Palace, otherwise Commons officials could just send it with other business.

 


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