Could Boris Johnson Try To Suspend The Benn Act?

Sir John Major today claimed that Boris Johnson might try to suspend the European Union (Withdrawal) (No. 2) Act 2019 (‘the Benn Act’) by Order of Council to avoid having to ask for an extension. But what is an Order of Council, and could it really be used to suspend the Benn Act?

First off, Orders of Council are different from Orders in Council. While the latter is made by the Queen on the advice of the Privy Council, the former is made by the ‘Lords of Her Majesty’s Most Honourable Privy Council’ (i.e., Ministers) acting independently of the Monarch. Although each Order of Council is said to be made ‘At the Council Chamber, Whitehall,’ this is a legal fiction—in reality, they’re approved through correspondence without the need for an actual meeting.

Orders of Council fall into two categories: prerogative and statutory. A common example of a prerogative Order would be an Order approving changes to the bylaws of chartered bodies (many of these are featured in the list of Orders of Council approved in August), while statutory Orders encompass a smorgasbord of powers, including granting universities the power to award degrees and setting midwifery fees.[1]

Sir John’s fears are likely unfounded. There’s simply no power, statutory or prerogative, to suspend an Act of Parliament. While the Crown did claim that power in former times, it was expressly prohibited by the Bill of Rights (“[T]he pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall”). Even if the Government was crazy enough to try to suspend the Benn Act by Order of Council, it would quickly be struck down by the courts. Unlike prorogation, where the Government was using a lawful power in an unlawful manner, attempting to suspend an Act of Parliament would be flat-out illegal.

The Government may well try to wriggle out of the provisions of the Benn Act, but they’re more likely to try to exploit loopholes within the Act itself than they are to suspend it.

[1] One might be wondering why these powers aren’t exercised by means of a humble statutory instrument. The answer is that the drafters of the relevant primary legislation felt that doing it by Order of Council lent a certain cachet to the process.  

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