Government Loses Brexit Case

Brexit just got more complicated. In a landmark ruling, the High Court ruled that the Secretary of State for Exiting the European Union can’t use the royal prerogative to activate Article 50.

The European Communities Act 1972 is at the heart of the court’s decision. This Act incorporated the law of the European Communities (the precursors of the European Union) into Britain’s domestic law. This is significant because, once Article 50 is invoked, the British people will inevitably lose rights that are part of British law because of the 1972 Act.[1] It has long been axiomatic that the Crown can’t use its prerogative powers to change the law. Therefore, the court held that the Government lacks the power to give notice under Article 50.

I’m not terribly surprised by the court’s decision. The more I thought about the claimants’ case, the more compelling it seemed. The notion that Crown can’t unilaterally tinker with the statute book is one of the fundamentals of the British constitution. Parliament settled this question in 1689 when it declared “[t]hat the pretended Power of Suspending of Laws or the Execution of Laws by Regal Authority without Consent of Parliament is illegal.[2]” The EU laws in this case can only be abrogated by Parliament.

The High Court’s decision has provoked a strong reaction from members of the Leave camp. Many have accused the judges of trying to subvert the will of the British people. For example, Iain Duncan Smith told the Telegraph that “when we passed an Act to give the British people a referendum, we passed sovereignty back to them to make that decision [to leave the EU].” There’s one major problem with this argument: Constitutionally speaking, the Queen-in-Parliament is sovereign, not the British people.

The European Union Referendum Act 2015 did not change this fundamental fact. Parliament could have ceded its authority over this matter to the British people—for example, it could have included a ‘Henry VIII clause’[3] in the 2015 Act that would automatically allow the Crown to amend or repeal EU-related legislation by statutory instrument in the event of a Yes vote. But in the absence of such a provision, Parliament is ultimately responsible for deciding whether Britain remains in the EU.

The outrage from Leave campaigners is more than a little ironic. Many of them claimed that leaving the EU was the only way to safeguard Parliament’s sovereignty, so it’s a bit rich for them to castigate the High Court for upholding that very doctrine!

The Government has promised to appeal, but I would be very surprised if the ruling were overturned. The limits on the royal prerogative are too firmly entrenched.

NOTES

[1] Both the Government and the claimants argued that notice under Article 50 can’t be revoked, and the High Court accepted this proposition. However, over at the UK Constitutional Law Blog, Aurel Sari has argued that the UK could, in fact, withdraw its notice.

[2] Section I of the Bill of Rights 1688.

[3] Henry VIII clauses are actually quite common. The Government usually justifies them on the grounds of expediency. Highly technical legislation often requires numerous changes to other statutes, and the full extent of these changes might not be apparent when the bill is going through Parliament. In theory, a Henry VIII clause allows the Government to avoid wasting Parliament’s time. The downside is that, once a Henry VIII clause has been enacted, Parliament has little control over how the Crown uses that power. Statutory instruments are subject to much less stringent parliamentary oversight, and peers and MPs can’t amend them.

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Angelina Jolie And The House Of Lords

There have been reports in the media that Angelina Jolie fancies a seat in the House of Lords. But could that actually happen? Could she really become Baroness Jolie?

The simple answer is yes. Although MPs must be British citizens (or citizens of a Commonwealth country or the Republic of Ireland),[1] there is no such requirement for members of the House of Lords. However, Jolie would have to agree to be resident in the United Kingdom for tax purposes.[2]

Jolie’s path to the Lords could begin in one of three ways. She could be nominated by a party leader,[3] a member of the public, or she could even nominate herself. In each case, her candidacy would be vetted by a non-partisan body known as House of Lords Appointments Commission. But she would not be subject to an American-style confirmation hearing. Although the Commission would interview her, it would do so in private. If they decided that she would be an asset to the upper house, her name could then be passed along to the Queen for formal approval.

But Jolie shouldn’t order her peerage robes from Ede & Ravenscroft just yet. While Jolie has done a great deal of humanitarian work, she’s also an American with few ties to the United Kingdom, and many might question the wisdom of giving her a lifetime seat in Britain’s legislature. She might not even find the work congenial. With so many peers in the House nowadays, individual contributions are often truncated. Jolie could easily find herself sitting in the chamber for several hours in order to make a five-minute speech. She would also have to publicly declare certain financial interests, and she might not welcome that level of publicity. But who knows? If Jolie puts down roots in the UK and continues her humanitarian work, she might make it onto the red benches after all.

NOTES

[1] Section 18(1) of the Electoral Administration Act 2006.

[2] Section 41 of the Constitutional Reform and Governance Act 2010.

[3] Although the Prime Minister alone has the power to advise the Queen to grant peerages, they will usually seek recommendations from other party leaders.

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The Curious Case Of Camilla And The Privy Council

When browsing the Court Circular, I noticed that the Duchess of Cornwall was admitted to the Privy Council in June. This is rather unusual. Although the heir apparent invariably becomes a Privy Counsellor, this honor is not usually extended to their spouse. Until now, the only exception was the Duke of Edinburgh, who joined the Council along with Princess Elizabeth in 1951. Of course, one must bear in mind that most heirs apparent had female spouses, and it would have been unthinkable for them to join the Council before Margaret Bondfield became the first woman Privy Counsellor in 1929.

This episode revealed another interesting tidbit: the ceremonial for admitting a member of the royal family differs from that used for non-royals. The official Order in Council recording the Duchess of Cornwall’s membership states that she was “introduced to Her Majesty’s Most Honourable Privy Council.” Usually, these Orders say that the individual was “sworn of Her Majesty’s Most Honourable Privy Council” since Privy Counsellors take the Privy Council Oath and the Oath of Allegiance.

Curious, I wrote to the Privy Council Office to see if they could explain this discrepancy. I received a very kind reply from Ceri King, the Deputy Clerk of the Council, who said that she couldn’t find any explanation for this custom. It’s just been done that way for a very long time!

I guess some aspects of the British constitution will always remain a mystery….

EDIT: Some readers have asked why the Duchess of Cornwall was admitted to the Council in the first place. Although Buckingham Palace has not commented publicly on the matter, media reports claim that the Queen wants Her Royal Highness to be at the Prince of Wales’ side during the Accession Council.

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How Does One Become A Minister?

Earlier this week, I explained the formalities that a person must undergo before they can become Prime Minister. Today, I will do the same thing for the other members of Her Majesty’s Government. This is a surprisingly complex subject since ministers take office in many different ways.

The Cabinet

Most Cabinet ministers formally take office at a meeting of the Privy Council. There are three oaths/affirmations involved: the Privy Counsellor’s Oath, the Oath of Allegiance, and the Oath of Office (however, if someone has already taken the Privy Council Oath and the Oath of Allegiance, they will not need to take them again). The oaths are taken while kneeling on little footstools, and afterward ministers kiss Her Majesty’s hand. Sometimes the gymnastics involved have proven too much for ministers. Richard Crossman records an incident where four Privy Counsellors found themselves on the wrong side of the room and ended up crawling toward the Queen on their hands and knees.[1]

The Lord Chancellor, the Lord Privy Seal, the Chancellor of the Exchequer, the Chancellor of the Duchy of Lancaster, and Secretaries of State receive seals of office after taking the oaths. Well into the twentieth century, outgoing ministers were expected to surrender their seals to the Sovereign in person upon leaving office, but this practice has been replaced with a more flexible procedure whereby ex-ministers receive a ‘farewell audience’ at a convenient date. If a Secretary of State is being appointed to a new position, they will be given placeholder seals (when Crossman became the first Secretary of State for Social Services in 1968, he received the seals of the newly abolished Secretariat of State for Commonwealth Affairs covered in sticky tape![2]). Unlike the other ministers, the Chancellor of the Duchy of Lancaster always takes the Oath of Office and receives the seals after the Privy Council. The reasons for this are obscure—Professor Brazier has suggested that it’s because of the ‘personal character’ of the appointment (the Duchy of Lancaster is the Monarch’s private estate).[3]

The Lord President of the Council is simply declared as such by the Queen and then takes the oaths and kisses hands.

Oddly enough, British ministers generally don’t receive any kind of official document when they take office. However, there are some exceptions. The First Lord of the Treasury, Chancellor of the Exchequer, and Lord Privy Seal are all appointed by Letters Patent (the Chancellor’s appointment is actually effected by two separate instruments—one appointing them as Chancellor and Under-Treasurer and one appointing them to the Treasury Board along with the Prime Minister and the Junior Lords of the Treasury). The Chancellor of the Duchy of Lancaster receives a warrant under the Royal Sign Manual, and the President of the Board of Trade is appointed by an Order in Council (nowadays, this position is always held by the Secretary of State in charge of trade).

Junior ministers

With junior ministers, the appointment process is simpler. They take office as soon as the Queen approves their appointments, though they’ll have to take the Oaths of Allegiance and the Oath of Office in the presence of another minister (usually the Lord President of the Council). The Law Officers and the Paymaster General are the only junior ministers who receive instruments of appointment. Although the Law Officers take office as soon as Her Majesty approves their appointments, she will confirm them in office by Letters Patent. The Paymaster General will receive a warrant under the Royal Sign Manual. Most junior ministers don’t get to meet with the Queen on their appointment. However, Government whips in both Houses of Parliament are traditionally given sinecure offices in the Royal Household. Commons whips become the Vice-Chamberlain of the Household, the Treasurer of the Household, and the Comptroller of the Household, while Lords whips become Lords/Baronesses-in-Waiting.[4] The Vice-Chamberlain, Treasurer, and Comptroller receive a white staff as a badge of office,[5] but their colleagues in the Lords don’t receive anything.

NOTES

[1] Richard Crossman, Diaries of a Cabinet Minister: Lord President of the Council and Leader of the House of Commons, 1966-1968 (London: Hamish Hamilton and Jonathan Cape, 1976), 44.

[2] Richard Crossman, Diaries of a Cabinet Minister: Secretary of State for Social Services, 1968-70 (London: Hamish Hamilton and Jonathan Cape, 1977), 233.

[3] Rodney Brazier, Ministers of the Crown (Oxford: Clarendon Press, 1997), 84.

[4] Their duties in the Royal Household are purely ceremonial. Commons whips serve as the channel of communication between Her Majesty and the Commons, while Lords whips greet foreign VIPs on behalf of the Queen.

[5] These staves will be ceremoniously broken over the Queen’s grave at her funeral.

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How Can Theresa May Create New Departments So Quickly?

A reader was surprised to learn that Theresa May has made David Davis ‘Secretary of State for Exiting the European Union.’ They thought it was odd that she could create a new department out of thin air. This is possible because of the constitutional metaphysics of the office of Secretary of State.

Although there are numerous individuals with the title of ‘Secretary of State,’ they technically hold the same office, and each one is theoretically free to act on behalf of the others (this is why Acts of Parliament refer to ‘the Secretary of State’ without qualification). While Davis will take office right away, the Queen will eventually formalize the creation of the new department by making an Order in Council under the Ministers of the Crown Act 1975. This Order will establish the new Secretary of State as a corporation sole and (if necessary) provide for the transfer of functions from other ministers. These Orders are subject to negative procedure (i.e., either House of Parliament can ask Her Majesty to annul them), but in practice, the Prime Minister will get their way. As a result, they have considerable latitude to shape their Cabinet.

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Why Is There A ‘First Lord of the Treasury’?

My recent post about the formalities surrounding the premiership led a reader to ask about the office of First Lord of the Treasury.

As the title implies, the First Lord is actually one of several ‘Lords of the Treasury.’ By convention, the Prime Minister is First Lord, the Chancellor of the Exchequer is Second Lord, and Government whips in the House of Commons are the other Lords (the whips are never referred to by ordinal numbers–they’re just called ‘Lord Commissioners of the Treasury’ or ‘Junior Lords’). Together, these individuals exercise the now-defunct office of Lord High Treasurer. At one time, the Lord High Treasurer was one of the most important figures in government, and by the sixteenth century, he came to play a role similar to that of a modern Prime Minister. Upon the Earl of Shrewsbury’s resignation as Lord High Treasurer in 1714, George I decided to put the office into commission in the hopes of diluting its power. But in time, the First Lord of the Treasury became just as powerful as the old Lord High Treasurer.

Until the nineteenth century, the Treasury Board was a functioning organ of government, but the increasing complexity of the nation’s finances made it difficult for the Board to fulfil its duties. Its proceedings became increasingly formal, and after 1856, it ceased to meet at all.[1] With the Treasury Board’s slide into desuetude, the Chancellor of the Exchequer assumed responsibility for the nation’s finances. Nowadays, the other Lords Commissioners play no role in the Treasury’s affairs beyond signing certain documents under the Instruments (Signature) Act 1849. In practice, this duty usually falls on the shoulders of the Junior Lords rather than the Prime Minister or the Chancellor.

NOTE

[1] Sir William Reynell Anson, The Law and Custom of the Constitution: The Crown (Oxford: Clarendon Press, 1896), 174-175.

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How Does One Become Prime Minister?

In an unexpected development, Andrea Leadsom has quit the race for Conservative leader, leaving Theresa May as the only candidate to succeed David Cameron. However, certain formalities must take place before May can take the reins of government. In this post, I’ll explain how May will become Prime Minister.

First, David Cameron must tender his resignation to the Queen. The rule of thumb is that the outgoing premier doesn’t resign until there is a clear successor waiting in the wings, which is why Gordon Brown didn’t step down immediately after the 2010 General Election. When tendering his resignation, Cameron will advise Her Majesty that May is able to command the confidence of the House of Commons.

The Queen will then send for May and ask her to form a government. Nowadays, the prospective Prime Minister is likely to respond with unqualified acceptance, but it’s also possible to accept an ‘exploratory commission.’ In this case, they agree to explore whether they can form a government and report back to Her Majesty once they have a definitive answer.

May will become Prime Minister as soon as she accepts the Queen’s invitation. However, ‘Prime Minister’ is technically a courtesy title rather than an office, so she must hold another position in order to draw a salary. For the past several hundred years, premiers have also served as ‘First Lord of the Treasury,’ but there have been exceptions to this rule (for example, in the late nineteenth century, the Marquess of Salisbury served as Foreign Secretary and then Lord Privy Seal rather than First Lord of the Treasury). In practice, the Prime Minister’s role at the Treasury is purely nominal, and day-to-day responsibility for the nation’s finances restd with the Chancellor of the Exchequer. May will be sworn in as First Lord of the Treasury at a meeting of the Privy Council, and her appointment will later be confirmed by Letters Patent. May will also become ‘Minister for the Civil Service,’ but this is a comparatively minor position compared to the others.

Although Labour and the Liberal Democrats have already started taking potshots at May for being an ‘un-elected Prime Minister,’ there is nothing untoward about a new premier taking office without fighting a General Election. A Prime Minister holds office because they have the confidence of the Commons, not the electorate. It’s a bit ironic that Labour should make a fuss about this given the fact that Gordon Brown waited three years before going to the country, but politicians can have short memories.

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Why Do Privy Counsellors Lead Inquiries?

After seven years, the committee of Privy Counsellors set up to investigate Britain’s role in the Iraq War has finally made its report. But why do Privy Counsellors lead inquiries in the first place?

The Privy Council oath includes a promise to “keep secret all matters committed and revealed unto you, or that shall be treated of secretly in Council,” though in practice, this secrecy only applies to matters that are explicitly discussed ‘on Privy Council terms.’ This allows Privy Counsellors to obtain classified information, which is why the Leader of the Opposition is customarily appointed to the Council.

Not every inquiry will require the services of Privy Counsellors. For example, Dame Lowell Goddard has not been appointed to the Council for her inquiry into child sexual abuse in England and Wales. Generally, Privy Counsellors will only be involved if the inquiry involves issues of national security.

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Will Brexit Require An Act Of Parliament?

The UK Constitutional Law Association’s blog has a number of interesting posts about the constitutional aspects of Britain’s withdrawal from the European Union. Particularly noteworthy is a piece by Nick Barber, Tom Hickman, and Jeff King arguing that Britain might not be able to trigger Article 50 without an Act of Parliament.

Their logic runs like this: giving notice under Article 50 is an irreversible decision. The Treaty of Lisbon does not contain any provision to rescind such notice, and countries that invoke Article 50 will be automatically released from the treaties of the European Union after two years even if an agreement with the other member states is not forthcoming (though this two-year period can be extended with the unanimous agreement of the other member states). Since invoking Article 50 is tantamount to withdrawing from the EU, the authors argue that Parliament must give permission before it happens. This is because the United Kingdom’s relationship with the European Union is governed by Acts of Parliament (e.g., the European Communities Act 1972), and withdrawing from the EU would effectively repeal those acts without parliamentary consent. Since it’s long been accepted that the Crown cannot unilaterally negate statute law, the Government cannot use the royal prerogative to activate Article 50.

It’s a very solid argument, but I’m not 100% convinced. As Adam Tucker has pointed out elsewhere on the UKCL Blog, the problem lies in section 2(2) of the European Communities Act, which states that the Executive may make provision “for the purpose of implementing any EU obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised” (emphasis mine).

Article 50 of the Treaty of Lisbon gives member states the right to withdraw from the EU, so it seems that the Government could simply make a statutory instrument under section 2(2) when giving notice of its intent to withdraw (given the significance of the matter, I suspect that it would be done by the Queen-in-Council). Parliament would still be involved in this process since paragraph 2(2) of Schedule 2 of the European Communities Act provides for parliamentary oversight of these statutory instruments–if they haven’t been approved in draft form by both Houses, they can be annulled by resolution of either House. If this is the case, the question of the royal prerogative would be moot. As the House of Lords observed in Attorney-General v De Keyser’s Royal Hotel Limited  ([1920] UKHL 1, [1920] AC 508), the Crown cannot fall back on the prerogative if Parliament has created a statutory power.

Regardless of the mechanism involved, parliamentary involvement with Brexit could be incredibly messy. Passing an act could take a very long time. If pro-EU MPs decide to play hardball, the Government could be unable to limit debate. The House usually agrees to a programme motion that establishes a timetable for the bill’s legislative journey, but the Government’s majority is slim enough that such a motion could easily be defeated. If that were to occur, the bill could be filibustered by pro-EU MPs.

And then there’s the issue of the House of Lords. Given its leftward tilt, a Brexit bill could receive a chilly reception from their lordships. They could reject it outright or subject it to endless debate (there’s no such thing as a programme motion in the Lords). Ordinarily, peers would not adopt such a confrontational stance, but they’ve definitely grown more assertive in recent years. The Government could ultimately use the Parliament Acts to get the bill onto the statute book, but that would take years.

Proceeding by statutory instrument might be faster since there would only be  a single up-or-down vote in each House, but it would also give the House of Lords an absolute veto over Brexit. Unlike bills, statutory instruments are not subject to the Parliament Acts.

The fact that there is so much uncertainty over Parliament’s role in Brexit does not bode well for the future. European leaders have made it clear that they want action sooner rather than later, but the Government might well find that it’s unable to oblige.

 

 

 

 

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Could Scotland Block Brexit?

There have been reports in the media that Nicola Sturgeon is threatening to use the Scottish Parliament to block Britain’s withdrawal from the European Union. It’s a bold claim, but could it actually happen?

At the heart of the issue is something called a ‘legislative consent motion’ (also known as a ‘Sewel motion’). They are used when the British Parliament wishes to legislate on a subject that would ordinarily be handled by the Scottish Parliament, or when the Scottish Government wants the British Parliament to extend England-only legislation to Scotland. Sturgeon believes that Brexit will necessitate a legislative consent motion, and she has said she could instruct her MSPs to vote against it.

However, this plan has a number of problems. First of all, it’s not clear that a legislative consent motion would be necessary since matters relating to the European Union are reserved to Westminster under paragraph 7(1) of Schedule 5 of the Scotland Act 1998. Even if a legislative consent motion were deemed necessary for some reason, its failure to pass would not necessarily prevent Britain from leaving the EU. That’s because it’s basically a constitutional courtesy. The Westminster Parliament retains ultimate legislative authority over the whole of the United Kingdom, and it could proceed with Brexit legislation without MSPs’ consent. Obviously, that would anger a lot of people in Scotland, but allowing the Scots to scupper Brexit would anger a lot of people in England and Wales. Since England and Wales contain the vast majority of the UK’s citizens, the Government would likely side with them.

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