Lord Sumption is right: the Queen must not be dragged into Brexit
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Some people like to be lazy in their retirement; others prefer to keep busy. And then there is Jonathan Sumption. Since he stepped down as a Supreme Court judge last December, he has delivered the best Reith Lectures for many years on “Law’s Expanding Empire” and is working hard on the fifth volume of his monumental history of the Hundred Years’ War, for which purpose he has added to his fluent French and Italian a reading knowledge of Spanish, Dutch, Portuguese, Catalan and of course Latin. Meanwhile, his jurisprudence is still in demand on the Court of Final Appeal in Hong Kong.
Now Lord Sumption has issued a warning about the looming constitutional crisis over the possible prorogation of Parliament to facilitate a no-deal Brexit by our new Prime Minister. Writing in the Times today, he argues that such a suspension of the legislature by the executive “will be unconstitutional, but may yet be lawful, and so beyond the reach of the courts”.
If he is right, the courts would rule that judicial review, which Sir John Major and Gina Miller have threatened in order to block Boris Johnson, does not apply to prorogation. Lord Sumption was one of the Supreme Court justices who two years ago upheld Ms Miller’s case that stopped Theresa May from exiting the EU without authority from Parliament. This time, however, the question at issue is a constitutional convention rather than the law of the land. Such conventions are not, he argues, justiciable — that is, “they are rules but not legal rules and breach of them is not necessarily contrary to law”.
What this means is that a Johnson administration could advise the Queen to prorogue Parliament in October in order to override the Commons majority against a no-deal Brexit. As a constitutional monarch, the Queen “plainly ought not to act inconsistently with either the law or the conventions of the constitution, and presumably she would not wish to. But in practice she is likely to follow the advice of her ministers”. This would inevitably drag her into the political conflict over Brexit and precipitate a constitutional crisis.
Lord Sumption has an ingenious proposal to head off this crisis. His solution is to set up a committee of independent Privy Counsellors to provide an alternative source of advice for the Queen. Their role would be to advise on “the legal and conventional limits of the use that ministers can make of her constitutional powers”. Such a committee would, he argues, need to include at least one senior judge to guarantee its authority and impartiality. Though he does not of course say so, the obvious choice to be its chairman is Lord Sumption himself.
The Sumption proposal raises obvious questions, both procedural and political. Who would appoint such a committee? If it were Parliament, the Government might object — and vice versa. Why, in the present circumstances, would a new Prime Minister choose to limit his room for manoeuvre in this way? The judiciary, the House of Lords, the universities and other likely bodies from which members of the committee might be drawn are overwhelmingly against Brexit in any form, let alone a no-deal Brexit. No Prime Minister, let alone this one, wants to risk being overruled by the great and the good.
Yet Lord Sumption is surely right that there is no other way to “protect the public from ministerial abuse of the royal prerogative while shielding the monarch from personal involvement in politics”. It is clearly in the public interest, therefore, that Boris should invite Lord Sumption and other constitutional experts to Downing Street to discuss how such a committee might be set up, how it would operate, and how to avoid a potential clash between the advice of ministers and to the Queen and that of the committee.
If these and other matters were resolved, the creation of such a committee would be a grand gesture by the incoming Government that should allay anxieties about a possible coup by the new Prime Minister. Boris needs to focus his attention on negotiating a new deal with the EU, not circumventing Parliament.
In practice, the committee would only meet very seldom. It would be understood that such advice could be sought at the discretion of the monarch, though the occasions for this would be rare. Its function, rather, would be to create another of the conventions that underpin our unwritten constitution, regulating the use and abuse of prerogative powers. In constitutional matters, as elsewhere, the threat is more powerful than the execution. This new convention should have a name. I suggest that it be known as the Sumption Convention.
