Could ministerial advice to the Queen to prorogue Parliament or to refuse assent to a Parliamentary Bill be challenged in the courts?

Posted on 08 Apr 2019 by Brick Court

Paul Bowen QC

This post continues the debate that has arisen following recent Parliamentary efforts to seize the initiative from the Government to avoid a no-deal Brexit, in particular the Cooper- Letwin Bill, and certain proposals that have emerged by which it is suggested the Government could thwart these efforts.  Strongly opposing views have been expressed as to the constitutionality of both these initiatives and of the proposed Government responses.  On one side the view has been expressed by highly eminent law Professors Finnis (emeritus), Brazier and Ekins, together with Sir Stephen Laws, former first Parliamentary Counsel, that these Parliamentary initiatives are somehow unconstitutional and the Government could respond by advising the Queen to either prorogue Parliament until after the Brexit date of departure or to withhold assent to any Parliamentary Bill that emerges as a result of such an initiative; or, in Prof. Finnis’ more recent suggestion, for the Lord Chancellor to refuse to even forward such a Bill for royal assent.  In his most recent post, Prof. Ekins suggests that it is ‘unconstitutional’ and ‘contrary to fundamental principles of parliamentary Government’ for a majority of MPs ‘to govern without forming a Government’. In the face of such action, he says, the Government would be acting ‘rationally’ by advising the Queen to prorogue Parliament or to withhold royal assent. Robert Craig has also argued that the Government may be justified in advising the Queen to withhold assent in these circumstances.  The other side of the debate is represented by a significant number of equally eminent academic lawyers including Professors Mark Elliott, Thomas Poole, Gavin Phillipson and Jeff King and by senior practitioners including Lord Pannick QC and Dinah Rose QC, who are all signatories to a letter set out in a letter to the Times on 3 April 2019.  Their view is that for the Government to advise the monarch to frustrate the will of the majority in Parliament in any of the ways suggested by Finnis et al is, to use Mark Elliott’s phrase, a ‘constitutional monstrosity’.

I strongly agree with the latter group, for all the reasons they give, and notwithstanding Professor Finnis’ most recent response to Professor Elliott.  I will argue that for the monarch to take either course of action in order to frustrate a majority of elected MPs in Parliament would be unconstitutional, whether she did so on the advice of the Prime Minister or not.  Moreover, for the Prime Minister to advise the Queen so to act would be unlawful and susceptible to challenge by way of judicial review.  While I recognise such a challenge would risk further ‘enemies of the people’ headlines it would be as nothing to the constitutional crisis that would be precipitated by the Queen either acting, or refusing to act, upon the Prime Minister’s advice.  Professor Finnis’ suggestion for avoiding this constitutional crisis – that the Lord Chancellor simply refuse to forward the Bill for royal assent, so the Queen is not confronted by this dilemma – sounds like a recipe for an executive putsch if allowed to become a precedent.  I suggest the Lord Chancellor has no discretion at all as to whether (Bennion, s 38), or when, to forward a Bill for assent, and – if he does – cannot exercise it for the purpose of frustrating Parliament’s will.

As to my first argument, there are four reasons why it would be unconstitutional for the monarch to take either course of action proposed by Finnis et al.  First, it would undermine the grundnorm of the British constitution, Parliamentary sovereignty, and would ‘reverse the result of the Civil war’, to use Lord Templeman’s graphic phrase in M v Home Office [1994] 1 AC 377.   Parliamentary sovereignty is enshrined in the final legislative outcome of the Civil War and the Glorious Revolution, s 1 of the Bill of Rights 1689:

That the pretended power of suspending of Laws or the execution of Laws by Regall authority without Consent of Parlyament is illegall. 

S 1 is given effect by the preamble to every Act of the UK Parliament:

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, as follows: …

This preamble is modified for an Act passed under the Parliaments Act 1911 and 1949 by the House of Commons alone, but with equivalent effect: see s 4(1) of the 1911 Act.

So while in our constitutional monarchy an Act of Parliament is only enacted once the monarch has assented to it (s 1 Royal Assent Act 1967), the power to legislate is entirely Parliament’s.  The consent of Parliament (at least, of the elected Commons) is required for all ‘Laws’ and the monarch’s assent to a Bill that has passed both Houses of Parliament is a ‘constitutional formality’ (Lord Bingham in Jackson v AG [2006] 1 AC 262 at [10]) and her power to withhold assent ‘purely theoretical’ (Lord Collins in Barclay (No 1) at [80]).   The monarch has not withheld consent to a Bill since 1707 and it would be unconstitutional for her now do so other than, possibly, in a ‘near revolutionary’ situation (Bennion, s 38).  Nor, it would follow, could she prorogue Parliament to frustrate Parliament’s attempts to legislate.

Second, even if the Prime Minister advised her to act otherwise the Queen would be bound, by the principle of Parliamentary sovereignty, to respect the will of Parliament.  By s 1 Bill of Rights and the Parliament Acts the making of an Act of Parliament requires the consent of (at least) the elected Commons; it does not require the consent of the Government.  In practice, of course, it will usually be the Government that brings forward legislation and seeks the Queen’s assent.  It is only in extraordinary circumstances such as the present that any Bill would pass through Parliament in the teeth of Government opposition.  While there is a convention that the monarch acts upon the advice of her Ministers, that convention is a consequence of the constitutional principle that the Queen acts with the consent of Parliament, whose will the Prime Minister will usually embody as the head of a Government which has the confidence of Parliament.  The fact that the Government has the confidence of Parliament (in that a motion of no confidence has not been passed under the Fixed Terms Parliament Act 2011) does not, however, mean that the Queen must follow the advice of the Prime Minister if that conflicts with the expressed will of Parliament in the form of a Bill presented for royal assent.  I agree with Professor Poole that the convention that the Queen follows the advice of her ministers is of a lower order than the constitutional principle that she respects the will of Parliament.  In the unlikely event that the two are in conflict, the latter prevails.

Third, the principle of Parliamentary sovereignty as it has developed for the last 350 years rests upon the fact that Parliament – at least, the House of Commons – represents the will of the electorate freely expressed through the ballot box at a general election (see Lord Hoffman R (Bancoult) v SSFCO [2009] 1 A.C. 453, [35]).   For the monarch to withhold assent to a Parliamentary Bill would not only breach the 350 year-old democratic underpinning of our traditional constitution but would also be incompatible with Article 3 of the First Protocol to the European Convention (A3P1), given effect domestically by the Human Rights Act 1998 and in the light of which our constitutional laws and conventions must be read:

The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

In R (Barclay) v Lord Chancellor [2010] 1 A.C. 464, [80], Lord Collins suggested (obiter) that the refusal of the unelected Lords to pass legislation passed by the elected Commons might breach A3P1:

If a second chamber had a power permanently to frustrate the will of the democratically elected chamber, and the power was not purely theoretical, like Her Majesty’s power to withhold Royal Assent, then there would at the least be a case for breach of article 3.

It would follow that if the Queen exercised her power to withhold royal assent then that too would breach A3P1 as it would frustrate the will of the democratically elected chamber to enact primary legislation.  I should add that, both for orthodox constitutional reasons and A3P1, primary legislation enacted by Parliament prevails over any expressed view of the ‘people’ in an earlier referendum, ours being a representative not a direct democracy.  The referendum was a creature of Parliament; an Act of Parliament was required for the Article 50 process to begin; and Parliament could revoke Article 50 by similar means.

Fourth, and contrary to the view expressed by Finnis et al, there is nothing unconstitutional about legislation that is passed by a majority of MPs in Parliament which has not been moved by, and is not supported by, the Government of the day.  Every Private Member’s Bill is capable of being passed into law, although the Government’s control of the Parliamentary timetable under Standing Order 14 means that the prospects of such a Bill being passed without government support are tiny, which is why the Cooper-Letwin Bill first required a successful motion to amend SO 14.  But a Private Member’s Bill, when passed, is not unconstitutional.  So the argument that the Government is entitled to respond to such legislation by drawing the Queen from her purely formal position (and one of strict neutrality) into the political ring does not begin to get off the ground.

My second argument is that it would be unlawful for the Prime Minister to advise the Queen to exercise her power of prorogation or to withhold assent to a Bill in order to frustrate the will of Parliament, because she would be advising the Queen to do that which she has no power to do.  I also consider that any such advice would be susceptible to judicial review.  In R (Barclay) v Lord Chancellor (No 2) (SC(E)) [2015] AC 276, the Supreme Court held that the giving of unlawful advice by the Privy Council (in the form of the Secretary of State) to the Queen in the exercise of her power to give royal assent was justiciable.  Granted, that was in the context of the passage of primary legislation by the Parliament of Sark, a Crown Dependency, and there are clear differences between the legislative processes of Sark and Westminster, not least that in Sark royal assent for primary legislation may be withheld on grounds that it is contrary to good government or the UK’s international obligations (R (Barclay and others) v Lord Chancellor [2010] 1 A.C. 464, [9-10]).   However, I do not consider these differences affect the question of the justiciability of such advice. There is a more difficult question whether a judicial review of such advice would be precluded by s 9 of the Bill of Rights 1689 as ‘impeaching’ or ‘questioning’ any ‘proceedings in Parliament’.   In Barclay (No 2) Baroness Hale (giving the judgment of the Supreme Court) held that the giving of royal assent by the Queen to an Act of the UK Parliament was immunised from challenge by s 9:

Nor is the analogy with Royal Assent to Acts of the United Kingdom Parliament exact: the Queen in Parliament is sovereign and its procedures cannot be questioned in the courts of the United Kingdom.

However, this observation was obiter and not the subject of full argument and, moreover, the court was not considering the situation with which we are concerned.  In my view s 9 would not apply in the circumstances envisaged.  The giving of advice by the Prime Minister to the Queen is not an act of Parliament but of the executive and is therefore not caught by s 9:  Bank Mellat v HM Treasury [2013] UKSC 38, [43], [56].   Moreover, to exclude the courts’ review of such advice in the present circumstances would be contrary to the objects and purpose of s 9 which are, first, to enshrine the sovereignty of Parliament as derived from its representative character and as affirmed by s 1 of the Bill of Rights; and, second, to make clear the limits of the courts’ jurisdiction in reviewing Parliament’s actions taken in that capacity (Bancoult, [35]).  The giving of advice by the executive whose sole purpose is to frustrate the will of Parliament would be the antithesis of Parliament’s intention in promulgating s 9 and, in those exceptional circumstances, it would not apply to exclude the court’s supervision (Padfield v Ministry of Agriculture, Fisheries and Food [1968] AC 997).  This interpretation of s 9 would also be required by s 3 Human Rights Act 1998 to ensure its compatibility with A3P1 (and see, by analogy, Toussaint v Attorney General of Saint Vincent and the Grenadines [2007] 1 WLR 2825, [34]).

These are extraordinary times, and an attempt by the Government to thwart the expressed will of Parliament by advising the Queen to prorogue Parliament or to withhold assent to a Bill would be an extraordinary constitutional development, as would the Lord Chancellor’s refusal to submit such a Bill for royal assent.  If faced with a challenge to such advice or action I think it likely that the courts, as the ultimate guardians of the Constitution, would accept they had jurisdiction to decide its unlawfulness.

Paul Bowen QC is a barrister at Brick Court Chambers specialising in public and human rights law and Honorary Professor at the School of Politics and Law, Sussex University

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