Queen Parliament Royal Assent Brexit
UK Constitution

Royal Assent: Crown neutrality on Brexit is unsustainable

The last time Royal Assent was withheld from a parliamentary bill was in the wake of the union of England and Scotland in 1707/8, when Queen Anne declined to support the Scottish Militia Bill. And she did so on the advice of her ministers: “…the Tories had shown that their views in relation to the major issues confronting the nation – the Church, the war, the succession, and the question of union with Scotland – were out of gear with the nation’s interests.” Queen Anne deployed her prerogative veto to ensure (or enhance) the possibility of national peace and reconciliation: the last thing the inaugural Parliament of Great Britain needed was armed Jacobites intent on restoring the Stuarts to the Throne.

The European Union (Withdrawal) (Number 5) Bill currently making its way through Parliament – at the behest of Yvette Cooper and Oliver Letwin – is designed to frustrate the possibility of a ‘no deal’ Brexit (that is, a clean, global Brexit on WTO terms). It is thereby purposely designed to frustrate Brexit altogether, simply because it obliges the Prime Minister to seek an extension to Article 50 not quite in perpetuity, but certainly to a point which appears to mandate the UK’s participation in Elections to the European Parliament next month, and thereafter Brexit is delayed until a ‘deal’ is done which satisfies the EU. The Bill doesn’t prevent ‘no deal’ altogether (the European Council could reject the Prime Minister’s request), but it patently binds the Prime Minister’s negotiating hand. It is a profoundly flawed bill – not least because it appears to have been preempted by her recent request for an extension to Article 50 – but it is effectual to the extent that the Prime Minister must move a motion in the House of Commons to extend Article 50 the day after the Bill receives Royal Assent.

There has been some conjecture that the Crown may demur, as it did in 300 years ago; that the Queen may be advised by her minsters not to give assent to the Bill on the grounds that it is purely a creation of Parliament, not responsible government; that is, government responsive and accountable to the will of the people. As JS Mill observed in 1864: “Responsibility is null when nobody knows who is responsible… To maintain it at its highest, there must be one person who receives the whole praise of what is well done, the whole blame of what is ill.” The Prime Minister can sack responsible ministers, and the people can sack responsible governments, but who can sack both Houses of Parliament? How may those who voted for a manifesto which pledged to take the UK out of the EU (Single Market and Customs Union) mete democratic justice upon a fractious Remainer House of Commons aided by a partisan Speaker who has ridden roughshod over constitutional precedent; abetted by a compliant Remainer House of Lords intent on abdicating their scrutinising role to rush through a flawed, ill-considered and procedurally irregular piece of legislation?

For some constitutional lawyers, the proposition that the Queen will withhold Royal Assent from the European Union (Withdrawal) (Number 5) Bill is ludicrous: it would be inconceivable, they aver, for Her Majesty to block the express will of Parliament. Indeed, it would, they further aver, lead to a constitutional crisis the likes of which we have not seen since… well, some say 1936, others 1708, and still others 1649. Whichever comparison is preferred, the current situation is neither without precedent nor commensurable constitutional concern.

Yet other lawyers take the view that the Queen must only act on the advice of her ministers, which is the convention, and that her neutrality is preserved by doing so. And since the Crown’s ministers oppose this Bill – it being in blatant contravention of their manifesto pledge to the people – the truly non-partisan action for her to take would be to withhold Royal Assent, for to grant it would run counter to the majority who voted to leave the EU (in both the 2016 Referendum and the 2017 General Election), and so be “out of gear with the nation’s interests”. Ergo withholding Royal Assent would be conducive to the common good and to sustaining the Queen’s Peace.

The inclination toward or from either argument is largely determined by whether one wishes to leave the EU or remain in it. Either way, even if there may be a strictly legal formulation of neutrality for the Crown-in-Parliament to follow in the granting of assent, the perception of the Queen’s personal neutrality will be marred. If the European Union (Withdrawal) (Number 5) Bill is passed against the will of the Crown’s ministers, the Queen is eschewing the advice of the Government she has appointed and siding with Parliament against her ministers. Indeed, no responsible minister will have countersigned the warrant affixed to the Great Seal, and so the Queen would not be acting neutrally because Parliament (Commons and Lords) is not responsible or subject to democratic control.

For the Crown to sustain its strict political neutrality, it should neither assent to nor refuse this Bill, for to do either would be to become embroiled in the ongoing contentious debates around conflicting perceptions of the good of a ‘no deal’ Brexit. And yet, constitutionally, the Queen has to be embroiled because, although she may be non-partisan and non-aligned, she is not aloof, disinterested or unengaged: every Bill which is placed before her is an expression of social, spiritual or philosophical value, and by assenting or refusing assent she affixes or denies her Seal to political objectives which are not value-free.

Which brings us to a dimension of Royal Assent which the constitutional lawyers are not considering, and that is the Queen’s role as Supreme Governor of the Church of England.

The fact that the Head of State is also Supreme Governor of the Established Church means that she is obliged to exercise her public ‘outward government’ in a manner which accords with the private welfare of her subjects – of whatever creed, ethnicity, sexuality or political philosophy, including whether they are Leavers or Remainers. The Royal Supremacy in regard to the Church of England is, in its essence, the right of the Crown in the supervision of its administration in order that the religious welfare of its subjects may be provided for. While theologians and politicians may argue over the manner of this religious welfare, the point is that no Bill placed before the Queen should cause her to break her solemn Coronation Oath to “govern the Peoples of the United Kingdom of Great Britain and Northern Ireland… according to their respective laws and customs”; and “to the utmost of [her] power maintain in the United Kingdom the Protestant Reformed Religion established by law… and preserve inviolably the settlement of the Church of England, and the doctrine, worship, discipline, and government thereof, as by law established in England”.

It has long been observed that the laws and customs of the secular European Union are increasingly antithetical to the laws and customs of the United Kingdom, which is a polity founded upon the precepts of Christianity. The latter has, incrementally over centuries, bequeathed to us a settlement of liberty, justice and peace. The former has, over just a few decades, imposed upon us an authoritarian and illiberal conception of rights which are impinging upon religious freedom, imperilling common-law notions of justice and endangering peace.

What is Royal Assent for if it may not be withheld when the Monarch deems a bill to transgress our shared self-understanding and respect for our institutions of justice and liberty? What is Royal Assent for if it is not to veto a profoundly flawed, ill-considered and procedurally irregular piece of legislation which pitches Parliament against the people? What is Royal Assent for if it is not to sustain the gospel ethic of peace and reconciliation over societal division and civil strife?

Constitutionally, the Queen has the power to advise and warn her ministers. But when her ministers are not presenting the European Union (Withdrawal) (Number 5) Bill for Royal Assent, how does she advise and warn Parliament that their conception of the good is at variance with that of the responsible Government, which is her appointed Government? How does she remind them that their political objective runs counter to the express will of the people, which was to leave the European Union, and that her appointed Government promised to deliver whatever the people decided? How does she point out that by either granting or withholding her assent from this Bill, the neutrality of the Crown in the eyes of her subjects is severely compromised, if not completely negated?