Will the Prime Minster be forced to put the Queen in the firing line?
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This week marks the opening of a new and explosive chapter in the unfolding drama of Brexit. The Opposition, under the de facto leadership of Sir Keir Starmer, intends to seize control of the parliamentary timetable. With the help of the Speaker, the “rebel alliance” will then introduce a Bill to make a no-deal Brexit unlawful.
Such legislation, even supposing that it could be enacted in short order, would not prevent Britain leaving the EU on 31 October. If a new Withdrawal Agreement has not been agreed by then, the default position remains no-deal. The Opposition might try to force the Government to request a new Article 50 extension, but Boris Johnson would certainly refuse. The circle could perhaps be squared by a general election, but this has been ruled out by Downing Street until after Brexit.
The prospect looms of a conflict that could only be resolved by one side or the other giving way. Michael Gove, the minister responsible for no-deal preparations, has hinted that the Government would not necessarily accept such an attempt to tie its hands. The courts cannot subject an Act of Parliament to judicial review. But it is open to question whether reserve powers could be used to block a Bill to prevent a no-deal Brexit.
The Queen’s Consent (as distinct from the Royal Assent) is required for any Bill that affects the prerogatives of the Crown. Whereas Royal Assent is a formality, the Queen’s Consent may lawfully be withheld, on the advice of ministers. The Prime Minister, supported by the Cabinet, including its law officers, could advise the Queen that a Bill to prevent a no-deal Brexit would prevent the Government from negotiating effectively with the EU. Such a Bill would inhibit ministers from exercising the prerogative powers, which are the basis for war and diplomacy. Accordingly, the Queen could lawfully withhold her Consent and the Bill would be null and void.
Such a use of the Queen’s Consent would inevitably provoke a huge new constitutional controversy, adding fuel to the flames of the Prorogation Crisis. The Prime Minister would not place the Queen in the firing line unless there were no alternative. For this and other reasons, he will try to avoid resorting to this “nuclear option” at all costs.
Hence the efforts now being exerted to head off the crisis by other means. Downing Street has threatened Tory MPs who vote for such a Bill with the loss of the whip and, in due course, of their seats. It is unusual for a Conservative leader to deprive rebels of the right to stand for the party at an election. Some say that they would stand as “independent Conservatives”, thereby splitting the vote and risking the loss of their seats. With their careers and livelihoods at stake, however, Tory rebels who have not yet burnt their bridges may fall into line. Without their votes, the Bill will fail.
As in Parliament, so in the country: it all comes down to the numbers. Polls suggest that the Tory Government has the support of about a third of the public, compared to roughly half who support the Opposition parties. The latter, though, are divided between Labour, Liberal Democrats, Greens and the SNP. The balance — up to 15 per cent of the electorate — supports the Brexit Party. In other words, they support Boris Johnson’s policy, but not his party. If he can deliver Brexit, then Conservative support could rise to up to half the electorate — more than enough to sweep the country under our electoral system.
The stage is set, then, for the most unpredictable period in recent history. Both sides in Parliament will use every trick in the book. Not only the great British public, but the rest of Europe will be watching to see which of the antagonists is bluffing. By next week we may know the answer, but it is equally possible that the conflict will move from the Commons to the courts, or even onto the streets. To move the arena for this bitter contest away from Westminster would risk igniting civil unrest. Surely both sides could agree on that.
According to Clausewitz, war is a continuation of politics by other means; but the politics of Brexit is a continuation of war by every means short of violence. We can only hope that our political class will remember that it is playing with fire.
