Last Monday, the Government capitulated to the Opposition’s attempt to bind its hands on Brexit via Hilary Benn’s bill (now the European Union (Withdrawal) (No.2) Act 2019) mandating it to seek and agree an extension of Article 50.
Having lost in the Commons there was an attempt to stage a filibuster in the Lords, but despite providing some spectacle for politicos this too was eventually called off.
Some excitable commentators have suggested that Boris Johnson might simply ignore the new law, but this would be totally unacceptable. Indeed, it would undoubtedly be politically fatal for any government deliberately to break the law. Had the Prime Minister wanted to demonstrate genuine political steel he might yet have prevented Benn’s bill from becoming law at all by advising the Queen to refuse to grant it Royal Assent.
It would undoubtedly have been extremely controversial. But so too have been many of the tactics already employed by both sides as they ransack our constitutional arsenals for increasingly arcane weaponry, and it might have allowed him to force the Commons to make the honourable choice: to dismiss his Ministry and try to form another, or to authorise a general election.
The debate in this area is both descriptive and normative. There is an active debate going on between those who think the Prime Minister still has power, descriptively, to advise the withholding of Assent in extreme circumstances and those who think Royal Assent now happens automatically at the behest of the Commons and Lords. The normative debate turns on whether or not refusing Assent is, as a matter of principle, democratically legitimate or is, as one critic put it, “objectively authoritarian”.
Yet we can’t entirely separate the two, because when it comes to the constitution legal arguments have a strange relationship with the ‘is-ought’ problem. Whilst often conducted between legal experts, the debates themselves seem often not to be questions about what the constitution is (upon which one can be an expert) but upon what it ought to be, a fundamentally political question which should not be confined to legal circles and experts.
Indeed Tom Bingham, the former Lord Chief Justice, in his book The Rule of Law, arguably fell afoul of the same conflation of political and legal discourse when he called for a “thick” definition of ‘the rule of law’ which encompassed various specific political ends, which he personally supported, and that he argued should benefit from legal codification.
The question is unlikely ever to be contested in court, as it is non-justiciable ‘high policy’ (although this is now perhaps less certain than it might have been). However, the question of whether or not we have an executive veto is likely to rest at least in part on whether or not those involved are persuaded that we ought to have one. Therefore we must examine both the descriptive and the normative arguments.
Let’s first look at the case for the veto existing. It is very simple. The veto is a legal power that has clearly been exercised in the past. Nothing has been done to abolish it. Laws do not fall into desuetude by not being used.
Although the definition is often elided by commentators, the House of Commons is not the same as ‘Parliament’. ‘Crown-in-Parliament’ consists of the Commons, the House of Lords, and the Crown. Parliamentary sovereignty, a widely-misused concept, applies only to legislation which has been approved by all three of those elements, which is to say has passed the Commons and the Lords and received Royal Assent. Such legislation is then officially on the Parliamentary Roll and is binding law.
Passage through the two Houses on their own is therefore no basis for arguing that Royal Assent is compulsory because ‘Parliament’ has allegedly approved it. It has not.
Critics of the proposal rightly point out that the last recorded instance of legislation being vetoed by the Crown was when Queen Anne, on the advice of her ministers, refused Assent to the Scottish Militia Bill in 1708.
But it does not follow from this long lapse that the veto has ceased to exist. Under our organic constitution reform is an ongoing process with no special hurdles for reform-minded ministries to leap. Despite this, no formal measure has ever been adopted to render the Royal Assent process into a rubber-stamp or to abolish it altogether. Contrast this with the Lords’ veto, which has been explicitly abolished and replaced with a power to delay.
If we are to have ‘a government of laws, and not of men’, we should be deeply concerned if constitutional mechanisms can be effectively magicked out of existence, without formal and positive legislation proposed by government and passed through the proper legislative processes.
There are other reasons to find the lack-of-use argument less than compelling, namely that our constitution was traditionally constructed so as to render such a veto unnecessary because it was impossible for the legislature to impose upon any ministry legislation which the latter found intolerable. (A Ministry might inherit legislation from a previous Parliament to which it deeply objected, but that is politically very different to being forced to implement, and be held accountable to the electorate for, legislation it bitterly opposed whilst nominally being in power.)
This was because in normal circumstances the very basis of governmental authority rests on commanding a majority in the Commons, and a government which lost its majority could always resign and go to the country if defeated – especially if the issue was the central plank of its platform. Indeed, such was normal practice.
The Fixed-term Parliaments Act (FtPA) has upended this norm, allowing for the absurd and previously impossible circumstance in which a Commons could at once refuse either to dismiss the Government or face an election, and instead, like a sort of constitutional cordyceps, compel ministers to pursue a course of action in direct contravention of both their programme and their promises to the nation.
It should not be surprising that such a dramatic change in the workings of one part of our system should have knock-on effects on other parts. Indeed, the inevitability of such consequences, and the impossibility of foreseeing them all, is why codification and reform in pursuit of theoretical purity is such a terrible idea.
In the unhappy circumstances created by the FtPA and the current Commons, it could be argued that withholding Royal Assent would actually rebalance the scales somewhat.
There is a concept in our system best summed up by the phrase “the Government proposes, Parliament disposes”. This refers to the fact that the Government normally controls what bills go before the legislature, and the legislature controls which pass. This creates checks and balances. There are partial exceptions to this principle, such as Private Members’ Bills. But the Government chooses whether to allocate time for such Bills, they’re vulnerable to filibuster, and as outlined previously, no Bill that a ministry felt was unacceptable could normally be imposed on it.
Under the precedent being set by Benn, and by Oliver Letwin before him, Parliament is starting to propose legislation – in which case the way to maintain our constitution’s traditional balance is for the Government to have the power to dispose of it, if it so chooses.
This then invites the question at the root of the matter: why is this balance important? Why should a Government – not just this ministry, but any ministry – have the right and ability to control the legislation enacted whilst it is in office?
In a word: accountability. Our system is geared both institutionally and politically towards holding the executive to account for the policies it enacts. But accountability only works if those being held accountable are actually those making decisions.
There is a further, connected problem: the separation of powers. The ‘Benn Act’, and Cooper-Letwin before it, involve the Commons as legislature effectively usurping the powers – and therefore the proper function – of the executive branch of the constitution, but without formally taking its place and thus submitting to the normal means by which a government is held to account.
(Some defenders of Benn et al have sought to deny that such usurpation has taken place and that the concept of a ‘shadow executive’ is an invention of their critics. Unfortunately for them the concept was set out in the Commons by none other than Sir Oliver Letwin himself, who said explicitly that the House of Commons would “take on the Government of our country” and “be a Cabinet”.)
A government, in parliamentary terms, is an explicitly political creature. That’s why its functions are performed by politicians. The Civil Service is expected to impartially enact instructions from above. A government is not.
Both the formal and informal elements of our system have evolved to reflect this reality. The parliamentary timetable is ordered around regular sessions wherein ministers are called before the House and questioned. The Commons Select Committees are established to mirror government departments.
It is a similar story with our political culture. Under our majoritarian electoral system, voters cast their ballots not just for a local MP but also for a programme for government (or if for a minor party, at least in full knowledge of the unlikelihood of their being in government). When a government fails to meet voters’ expectations, they know who to punish and how.
Benn’s legislation upends this widely-understood system of accountability. When certain MPs quietly travelled to Brussels to conduct their own negotiations, it was entirely out of the public eye. They cannot be called to the Despatch Box to account for their conduct – and those who can be so called are no longer directing Britain’s Brexit policy. As I wrote during Cooper-Letwin:
“As Letwin acknowledges in his speech, the actual Government is accountable to Parliament. But if Parliament becomes the Cabinet, what steps up to take the role of Parliament? There is nothing, save perhaps the judges, and political scrutiny is not their function.”
Nor is it just institutional scrutiny they are evading. When the time comes for an election, the voters will be unable to pass clean judgement on the current Government because it will, unprecedentedly, have completely lost control of the pre-eminent political question of the day. As Nikki da Costa has previously pointed out, it is just as difficult, if not impossible, to hold such a wildcat executive to account at the ballot box as at the Despatch Box.
The Opposition know this. The fiction that they are refusing an election purely to ensure that the Prime Minister doesn’t change polling day has fallen away to expose the obvious truth: that Labour are trying to force Johnson to extend Article 50 in order to weaken him politically. They have seen what happens to his poll numbers if he does – a clear example of voters holding the Government to account for something which is normally within its power but is suddenly not.
All of this is could have been averted if the Government had exercised the option to advise the refusal of Royal Assent. The fact the exercise is done solely on advice maintains crystal-clear lines of accountability between the de jure possession and de facto exercise of executive power. The Queen would not be involved or blamed. A ministry which chose to refuse Assent to a bill could be punished or exonerated either by the Commons, via winning or losing a vote of confidence, or by the voters at a subsequent election.
It is therefore wrong to suggest that this is ‘anti-democratic’. It is right that the Commons remains the ultimate arbiter of our system, via its ability to dismiss governments and override the Lords. But it is not necessary to democracy for the Commons to triumph in every turf war with other elements of the constitution without MPs to take proper constitutional responsibility for the consequences by formally supporting a new executive to form a government or precipitating an election.
We do not consider it an outrage to democracy that judges can determine the meaning of sections in Acts of Parliament, and we should not treat the executive’s power to advise on the exercise of prerogatives as any less legitimate, or less important, than the powers possessed by the judiciary.
In fact, until such time as the FtPA is repealed there is a case to be made that Royal Assent – the executive’s backstop, if you like – is actually an aide to democracy, because it maintains the direct link between office and power that our institutions and electorate expect, and prevents the Commons from trying to exercise executive power behind a theatre of normal government.
It is not authoritarian to try to make the legislature install a government honestly and publicly committed to its objectives, or to ask the country to furnish one if it cannot.