• Brexit: A constitutional crisis.


    Above, a scene from the Russian constitutional crisis in October 1993.

    In Britain, we like to thing that it “Johnny Foreigner” who has to put up with political and economic turbulence. The recent disorder in Zimbabwe is a case in point.

    Yesterday’s BG article advised it’s readers not to be too surprised in Madam Mayhem called a general election.

    Clearly this has not happened!

    However there are “reports” from “certain sources” that local authorities are putting some staff on notice as to the likelihood/possibility of just such an event.

    The Daily Telegraph reports upon a possible conflict between the Her Majesty’s Government and Parliament.
    GOTO: https://www.telegraph.co.uk/politics/2019/01/21/queen-could-asked-veto-john-bercows-attempts-water-brexit-government
    Doctor Richard North has commented upon this report in a typically acerbic style:

    “This is just bollocks……” “Delaying the Art 50 period requires the unanimous assent of the EU-27. Therefore, parliament can’t legislate for delay. And in any case, delay does not block a no-deal. It simply delays it.
    As to revocation of the Art 50 notice, parliament can’t do that because it has no locus. Only the state (i.e., government) can validly give notice. And on this, parliament can’t instruct the government as this is a Crown function, with the government invoking Crown prerogative.
    Grieve can huff and puff, but he wouldn’t get government support for his Bill and it would, therefore, be unlikely to succeed. But in the end – should it be presented for Royal Assent , the government could simply advise the Queen that the Bill was unconstitutional and for her to refuse assent.
    For sure, this would create conflict between executive and parliament, but since the remedy is a vote of no confidence, that probably won’t get Grieve his Bill.”

    British Gazette comment: For sure, we are entering uncharted territory here. Doctor North is correct. However, in order for a vote of No Confidence to succeed it will require Tory MPs and the DUP to vote down the government. This is something that Tory MPs and probably DUP MPS are not inclined to do.

    IF a Bill manages to run the gamut of parliamentary procedure through both houses (Commons and Lords) and reaches the monarch for the Royal Assent then theoretically one could have the situation the Daily Telegraph describes, namely that Her Majesty’s Government asks the Queen to refuse the Royal Assent.

    To realise the extent of the crisis and the Queen’s potential headache, we have to reacquaint ourselves with the British Constitution. The most significant document containing the British Constitution is the 1688 Declaration of Rights that was ratified into law in 1689 as the Bill of Rights.

    In essence, the monarch required the consent of Parliament for any new law or repeal, suspension or amendment of an existing one.

    Many readers will be familiar with the US constitution and how the executive and the legislative are split. What many of these readers may not be familiar with is this: The British constitution also has a split executive and legislative arrangement. The difference being is that in the British constitution the arrangement has been hi-jacked!

    This is because the monarch routinely appoints as their government ministers members of the House of Commons and also House of Lords. Not only that, the monarch appoints ministers who are members of the political party that has a majority of seats in the House of Commons. It is this arrangement whereby the executive and legislative functions of government are aligned.

    The Daily Telegraph quotes a person whom they describe as “a senior minister” as saying; “I have seen Sir Stephen Laws QC’s view – he is quite right. Dominic Grieve and Co had better think long and hard before potentially involving the Queen in such controversy.” Who goes onto say; “If Parliament publishes an act against Government policy, what are we left with? Do we just surrender meekly? No, I don’t think we do. We have to think about the position they are putting the Palace in.” Then; “As a Government we would be extremely worried and very concerned about bringing the Palace into any political controversy about Bills.”

    Whoever this person is the BG will state quite categorically that they are WRONG! This is because that part (i.e. most of it) of the British Constitution which is the 1688 Declaration of Rights/1689 Bill of Rights, implied that the Executive (the monarch) is separate from the Legislative (Parliament). The drafters and signatories of the constitution did NOT envisage a situation that pertains today where one faction in Parliament has de-facto taken over ALL the functions of the Executive!

    THUS: Were the Queen to be presented with a situation that a Bill repealing say the Brexit date of 29th March she would be in a quandary as she would not want to refuse Royal Assent and she would not want to give Her Royal Assent. Furthermore, whether or not the UK legislates to have 29th March as Brexit Day is neither here nor there as the text (Article 50) which gives effect to Brexit is contained in the Treaty of Lisbon!

    In a situation where Her Majesty’s Government has lost control of the House of Commons to the extent that Parliament has passed a Bill and presented it to the monarch for the Royal Assent and her ministers are asking the monarch to refuse the Royal Assent, the one thing the Queen can and should do is to follow the dictates of the 1689 Bill of Rights and following this the monarch is presented with a Hobson’s Choice: dissolve parliament and bring about a General Election so the Queen can appoint a new government.

    The problem here is that depending on when these events happen, there may or may not be time to dissolve Parliament and have a General Election before Friday March 29th 2019!

    In those circumstances the Queen should ask her Prime Minster – who would remain Prime Minister until the result of the General Election is known to request an Article 50 time extension from the European Commission in order to allow an election to take place before Brexit.

    If the Prime Minister refuses, the monarch should ask the Foreign Secretary to make the request. If the Foreign Secretary to make the request, then the monarch should ask the Secretary of State for Exiting the European Union to make the request. If the Secretary of State for Exiting the European Union refuses, then the monarch should ask the Secretary of State for Exiting the European Union to make the request Sir Timothy Earle Barrow KCMG, LVO, MBE, the Permanent Representative of the United Kingdom to the European Union to make the request. If Sir Timothy Earle Barrow KCMG, LVO, MBE, the Permanent Representative of the United Kingdom to the European Union refuses to make the request, then the monarch should ask General Sir Nicholas Patrick Carter, KCB, CBE, DSO, ADC the Chief of the Defence Staff to make the request. This because General Carter is the one man guaranteed to follow a direct order of his monarch. If Her Majesty asks General Carter to jump, his response will be; “How high to you want me to jump Mam?”

    Dear Reader: The situation is potentially THAT serious!

    Of course, it is extremely unlikely that it would get as far as General Carter!

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