Thursday 4 April 2019

Queen's Consent

This previous post  tracked the European Union (Withdrawal) (No.5) Bill which, on 3 April 2019, passed through all of its stages in the House of Commons.  For the Bill and other associated documents see Bills before Parliament 

The proceedings in the House of Commons raised an interesting point which is considered in this post.

Power to request extension:

The Bill requires, as a matter of law, the Prime Minister to move a motion asking the House of Commons to agree to the seeking of an Article 50 extension to a date to be specified in the motion.

This presupposes that the Prime Minister has a legal power in the first place to request an extension.  That has been challenged by some lawyers and a judicial review on the point has been commenced - see i News 3 April.   In a post on the UK Constitutional Law Association blog, Robert Craig argued that, unlike revocation, the treaty prerogative was a sufficient legal basis in domestic law for a brief extension of the Article 50 process on the international plane.

Let us assume just now that the treaty making power - a Royal Prerogative power - is available to enable requests for extension.

Queen's consent:

At the start of the Second Reading debate on the No.5 Bill the Speaker said that he had been advised by the Clerk of Legislation that "Queen's Consent" was not required  for the Bill.  This advice was based on the fact that Queen's consent had not been required for the European Union (Notification) Bill introduced in early 2017 after the Supreme Court judgment in Miller.  There was no requirement for a new and separate prerogative consent for the No.5 Bill.

Queen's Consent is not the same process as Royal Assent.  Royal Consent is a specific procedure that is triggered if a Bill affects the exercise of the royal prerogative (or certain other matters not relevant here).  It was examined by a Commons Committee in 2014.  The report noted:
  • Consent is a matter of parliamentary procedure. If the two Houses of Parliament were minded to abolish Consent, they could do so by means of addresses to the Crown, followed by a resolution of each House.  Legislation would not be needed.
  • If the House authorities decide that Consent is needed for a Private Member’s Bill, the Government should as a matter of course seek Consent.  This would remove any suggestion that the Government is using the Consent process as a form of veto on Bills it does not support.
Consent requirements are discussed at some length in Guidance for members of the Office of Parliamentary Counsel.  This states:

In relation to the No.5 Bill?

The legal requirement to be imposed on the Prime Minister by the Bill does not either remove any Royal Prerogative power or alter what may be done using that power.  Rather, the Bill provides a process by which the House of Commons can mandate the power to be exercised to, in this instance, seek an extension to a date to be inserted into the motion.  The usual power is therefore restricted.

In the absence of the Bill, the Prime Minister is unfettered as to whether an extension is to be requested and, of course, the length of time to be requested. If the Bill becomes law then it is difficult to see how the prerogative power could be exercised in a way other than as mandated by the legislation.  A good case therefore appears that the prerogative power is affected in such a way that Queen's Consent should either have been obtained or should be obtained.

In relation to an earlier Bill on the same subject, Robert Craig contended in this post on the UK Constitutional Law Association blog that Queen's Consent was required.  The same arguments appears to apply to the No.5 Bill.

What if Queen's Consent is not obtained?

What is the position if Queen's Consent is required and it is not obtained?  Guidance to Parliamentary Counsel assists with the answer:

The guidance also notes that -


The Speaker was advised that Queen's Consent is not required.  Given that Consent is a Parliamentary procedure then this advice can only be questioned in Parliament.  If the matter is questioned in Parliament then there is the possibility that the proceedings on the Bill could be declared void.  The courts are not permitted to question proceedings in Parliament - Bill of Rights 1689 Art. IX.  If however the Bill passes both Houses and receives Royal Assent then Queens' Consent has become irrelevant.

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