Queen’s Consent is a procedural requirement for any Bill passing through the Commons and Lords where the terms of the Bill would ‘affect’ the exercise of any royal prerogative if it was passed. The effect on the prerogative must be more than de minimis.
Queen’s Consent is normally a formality, because the government usually proposes (or more accurately for Private Members Bills, acquiesces to) all Bills that are successfully voted through both Houses. The current scenario could see a situation where a Bill passes in the teeth of trenchant
opposition from the government.
Prerogative powers are legacy powers of the Crown that are now mainly exercised by the government. Conducting foreign affairs, and in particular the power to agree treaties and operate treaty powers, is an important part of the prerogative and is the relevant power for this post. Under that power, the UK government has agreed new treaties, and particular laws, at EU level over the last 46 years (and indeed continues to do so).
The story behind the passage of Cooper-Letwin is more complex than many realise. The drafting of the original version was masterly.
Cooper-Letwin mandated the then Prime Minister (PM) to seek an extension to the Article 50 process. The word ‘seek’ is crucial. The reason it is so crucial is that it allowed the argument to be made that Queen’s Consent was not necessary for the Bill. This was because to ‘seek’ an extension does not actually have any effect in terms of changing the date of exit at EU level. Seeking an extension arguably does not ‘affect’ prerogative exercise as a matter of law.
The sheer cleverness of the drafting of Cooper-Letwin rests on the fact that it left entirely open what would happen after the extension was ‘sought’. The negotiations and agreement of a new exit date were without doubt exercises of prerogative power and any Bill that sought to regulate or supplant those aspects of securing an extension would certainly have required Queen’s Consent during the passage of the Bill.
The issue of Queen’s Consent was taken very seriously during the passage of the Cooper-Letwin Bill and was so controversial it resulted in a [formal ruling](
https://hansard.parliament.uk/Commons/2019-04-03/debates/0F559E56-033F-…(Withdrawal%29(No5%29Bill#contribution-DC5CD990-C745-4B29-825C-B2404A764AF4) by the Speaker. That ruling made clear that the original draft of the Bill did not require Queen’s Consent.
The Benn-Burt bill
If Benn-Burt had precisely followed the format of Cooper-Letwin and only mandated that the government seek an extension, then it would have placed no obligation on the PM to agree or accept any extension. That would remain part of the prerogative power to be exercised as the PM sees fit in his negotiations with the EU27.
However, Benn-Burt goes much further than Cooper-Letwin. It mandates that the PM must not only
seek but also
agree to an extension, either 31 January 2020 or another date if the Commons approves a date suggested by the EU27. Mandating that the PM agrees to an extension manifestly affects the prerogative. It is difficult to see how requesting Queen’s Consent can be avoided for this Bill. If so, it follows that the government must agree to the Bill being passed during Third Reading.
What is most fascinating about this dilemma is that the Cooper-Letwin prototype gave such clear and unequivocal evidence of where the bright line on Queen’s Consent is actually drawn by the legal experts who understand, and indeed determine, these issues within the Commons. Can there be any doubt that if a stronger wording could have been secured without triggering Queen’s Consent then such a wording would have been used last time?
Conclusion
The proponents of a new Bill to prevent No Deal are caught on the horns of a dilemma. If they had drafted a Bill that only mandated the PM to
seek an extension, the PM would be left free to refuse to
agreeor
accept any extension in negotiations with the EU27.
But the actual Bill tries to impose a requirement that the PM either agrees to 31 January 2020 or agrees any new exit date suggested by the EU27 (as long as a motion approving the alternative date in the House of Commons is passed). House of Commons procedural rules mean that the government is required formally to approve the Bill by affirming ‘Queen’s Consent’ to the Bill at the Third Reading stage. This is because the power to agree or accept an extension is normally exercised using a prerogative power. If passed, this statute would have the legal effect, by whatever means, of forcing the PM to agree an extension to the Article 50 process would manifestly ‘affect’ the prerogative for the purposes of the relevant test as to whether Queen’s Consent is required.
