Boris Johnson Still Has An Ace Or Two To Play

There is some good reason to believe the Benn-Burt Bill will not be enacted—at least not in its current form. One cannot be sure—as the final decision will largely rest with Speaker Bercow. The Benn-Burt Bill, in certain situations, mandates that the PM seek a further extension of the Article 50 process for negotiating a withdrawal from the EU. Furthermore, in certain situations, the bill mandates that the PM agree to the extension offered by the EU. The bill ties the hands of the PM in regard to negotiations and, if there is no timely Brexit on October 31, 2019, the bill will also tie the PM’s hands thereafter.

The issue is this. Generally, for Parliament to enact a statute, all that must happen is that the bill be passed by both houses and, then, obtain the royal assent. If the Benn-Burt Bill passes both houses, in theory, the PM could advise the Queen not to accede to the bill. The Queen acts on the advice of her ministers—but usually the ministers have put forward the bill or, at least, they have acquiesced to a private member’s bill. Here, where the House of Commons has seized the agenda paper and taken it out of the hands of the government, the government and House are not in alignment and the convention—that the Queen acts on the advice of ministers—is in tension with the historical norm that Queen accedes to all bills laid before her from Parliament. That’s one problem for the Benn-Burt Bill.

The bill has a second, and more significant problem.

As I stated: generally, for Parliament to enact a statute, all that must happen is that the bill be passed by both houses and, then, obtain the royal assent. There is an exception. Where a bill significantly weighs on the exercise of the reserved powers of the crown—the royal prerogative—the bill must have the Queen’s consent (which is distinguishable from the royal assent already discussed above). In other words, where a bill significantly burdens the exercise of what Hamilton called the residium of executive power, the bill must additionally have the support of a minister—and such support is usually signified in the third reading in the Commons. If the responsible minister does not support the bill, where the Queen’s consent is required, the bill (in normal times) dies—just as if Parliament had been dissolved or prorogued.

The Benn-Burt Bill limits executive discretion by the crown’s ministers in mandating, in certain circumstances, that the Prime Minister agree to extensions of the Article 50 process, if such an extension is offered by the EU. Using Queen’s consent, as opposed to relying on the royal assent, keeps the actual Queen out of politics—and puts real responsibility for the Brexit end-game back where it belongs: with ministers on the floor of the Commons and accountable to the Commons.

Boris still has an ace or two to play.

Seth

See generally: [A] Robert Craig, Proponents of the new Bill to stop No Deal face a significant dilemma over Queen’s Consent, LSE/Brexit (Sept 2, 2019), <https://blogs.lse.ac.uk/brexit/2019/09/02/proponents-of-the-new-bill-to-stop-no-deal-face-a-significant-dilemma-over-queens-consent/>;

[B] Guidance: Queen’s or Prince’s Consent, Gov.uk (updated 28 Sept. 2018), <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/742221/Queen_s_and_prince_s_consent_pamphlet__September_2018___accessible_.pdf>;

and,

[C] The Benn-Burt Bill: Another Article 50 extension?, The Commons Library (Sept. 4, 2019), <https://commonslibrary.parliament.uk/brexit/negotiations/the-benn-burt-bill-another-article-50-extension/>.

Seth Barrett Tillman, Boris Johnson Still Has An Ace Or Two To Play, New Reform Club (Sept. 4, 2019, 8:37 AM), <https://reformclub.blogspot.com/2019/09/boris-johnson-still-has-ace-or-two-to.html>.

See also: Seth Barrett Tillman, The Prime Minister’s Next Ace, New Reform Club (Sept. 7, 2019, 5:12 PM), <https://reformclub.blogspot.com/2019/09/the-prime-ministers-next-ace.html>.

See also: Seth Barrett Tillman, Prime Minister Johnson’s Last & Most Dangerous Ace, New Reform Club (Sept. 9, 2019, 9:19 AM), <https://reformclub.blogspot.com/2019/09/prime-minister-johnsons-last-most.html>.