Mailvox: Her Majesty’s Brexit

Not being an expert in the unwritten British constitution, I have no idea if what this emailer writes is actually true or not, but it would certainly be a good thing if it were true that the Queen’s apparent willingness to Refuse Assent to legislation if necessary has guaranteed no-deal Brexit despite the machinations of pro-Remain parliamentarians.

The Brexit ‘No Deal’ (a clean break from the EU) was cemented yesterday, but almost no one has noticed.

The existence of the monarchy is often simply considered to be a quaint tourist attraction, but it has real constitutional consequences. Sovereignty is often said to reside in Parliament, but that is intellectual laziness. The sovereignty of the United Kingdom resides in “the Crown in Parliament”.

There is not US-style separation of powers in Britain. The supreme judicial function used to reside with the Law Lords sitting on the wool sack, who would sit in the House of Lords alongside all the other hereditary and non-hereditary aristocracy. The analogous position would be for Roberts, Ginsberg, Kavanaugh et al to be sitting senators with a vote on legislation in addition to being judges ruling on cases brought before them regarding that legislation. The Law Lords were replaced with a Supreme Court by Tony Blair and Gordon Brown, who also excluded the hereditary aristocracy.

The hereditary aristocracy functioned to represent interests in a similar way to US senators prior to the 17th amendment. By allowing only the non-hereditary aristocracy to vote in the House of Lords, Blair turned the chamber into a pension system for failed elected politicians and government flunkies that carried water for the establishment. Imagine Lord Eric Cantor, Lord John Boehner, Lord Paul Ryan, Lord Eric Holder, Lady Lois Lerner, and the future Lord Robert Mueller being appointed senators for life after they had been removed from their previous positions. Fortunately, the Parliament Act of 1949 precludes the House of Lords from preventing the passage of budget legislation and also enables the House of Commons to force the passage of legislation in support of the official manifesto upon which the governing party was elected.

There is no Marbury v. Madison (1803), so the UK Supreme Court cannot strike down primary legislation in judicial decisions. But they can declare primary legislation incompatible with the Human Rights Act of 1998. We have our own Ruth Bader Ginsburg – Lady Hale is the Chief Justice.

The British constitution worked much better in its traditional configuration: Law Lords on the wool sack, hereditary aristocracy voting on legislation, and generally with the way things worked prior to 1997. A huge amount of damage was done by Blair. It is worth noting that Blair’s landslide victories (1997, 2001, 2005) were achieved with less votes from the population than Kinnock’s defeats (1987, 1992). This is because Conservative voters simply stayed home because the party gave them nothing to vote for.

Remember that the Conservative party had replaced Thatcher with Major to enable the Maastricht treaty, but so close to the general election that the impact hadn’t sunk in yet and the Conservative voters were prepared to give Major the benefit of the doubt. Those voters came back in 2015 to ensure that Cameron couldn’t negotiate away his promise to hold a Brexit referendum. Also, this week, Donald Tusk confirmed my assertions last week that David Cameron only made the promise with the idea that he could dispense with it in coalition negotiations with the Liberal Democrats. We voters have played our hand very carefully. These are not accidents or momentary rushes of blood to the head.

Her Majesty’s Government controls the legislative agenda through the Leader of the House in conjunction with the Speaker of the House. The Leader of the House is a cabinet minister, currently Andrea Leadsom, a Brexiteer and Theresa May’s last rival for the leadership in 2016 after Cameron resigned because he lost the referendum. Theresa May won by default because Leadsom withdrew when journalists started door-stepping her relatives. The final two leadership candidates are supposed to be put to the ordinary party membership around the country for a vote, a membership which is overwhelmingly Brexiteer, and whose most favoured outcome is a tungsten-tipped Brexit.

There was much talk last week of Conservative Remain members of parliament, in particular former ministers Nick Boles (junior minister under Cameron) and Dominic Grieve (attorney general under Cameron) taking control of the legislative agenda despite the fact that the agenda is at the control of the Government under Royal Prerogative. This would be subverting the authority of the Crown by removing the right to set the agenda from the Leader of the House.

Seizing control of the legislative agenda, for the purposes of preventing a ‘no deal’ Brexit, would require the assent of the Speaker of the House of Commons, John Bercow. When he was first elected to that position, he was described as Caligula’s Horse, and has lived down to that description throughout his tenure. Bercow is a Remain supporter.

On Monday, Sir Stephen Laws, the government’s retired head of constitutional law, warned that the usurpation of the legislative agenda from the Government of the Crown could necessitate the refusal of Royal Assent for the first time since the reign of Queen Anne, a time before the Act of Union with Scotland, more than 300 years ago. This is where you get the concept of a Presidential veto from. However, there is no parliamentary override vote. Having the warning issued by Sir Stephen was a discreet way of warning the Speaker, analogously to having a former Chief of the Defence Staff speak to the press to warn politicians of things that a serving military officer cannot say.

Because Monday’s warning was clearly insufficient to deter the Speaker from the proposed usurpation of the legislative agenda, it was repeated on Tuesday by a spokesman of Her Majesty’s Government. That seems to have had the effect, because all of the amendments presented to the Speaker by the members of parliament yesterday are amendments to motions, not amendments to legislation. In other words, they are merely opportunities for meaningless bloviating with no force of law. This avoids the Queen having to refuse Royal Assent to legislation.

If Parliament had attempted to hold an override vote, then it is likely that the troops that are normally seen by the tourists in full ceremonial uniforms would have been sent directly to the chamber of the Commons to arrest the speaker, seize the mace (the legal authority of parliament), and throw the offenders in the Tower of London (that’s what it’s there for). The Queen would then have prorogued parliament pending fresh elections. The last time such things happened, there was a civil war of Parliament against the King. The King lost his head in Whitehall, and Parliament made such a mess of things that his son was invited to restore the monarchy. Charles the First had been particularly feckless, which must have been surprising because his father, James the First had been one of our best monarchs.

It is worth noting that the Queen allowed herself to be caught on an open microphone during her robing in the Victoria Tower for the State Opening of Parliament, prior to the referendum, voicing her support for Brexit. That didn’t happen by accident. The Victoria Tower is where all the Acts of Parliament are all held on vellum scrolls.

So, the position now is that the House of Commons will not manage to pass any legislation to change the already legislated default position of ‘no deal’ with the EU. On the matter of Brexit, we have crushed our enemies, seen them driven before us, and what we are now hearing is the lamentation of their women.

What will happen now is that Theresa May will consult with absolutely everyone in an alleged effort to put together some type of workable deal. This is simply a displacement activity, like a hamster washing itself when threatened. The consultations will assume an ever more feverish intensity the closer we get to 29 March. But the fact is that the alignment of interests of all groups involved in Brexit is such that no coherent position can be established for a deal to be made. She is now, as some have alleged, simply running down the clock to ‘no deal’. But of course that this is now government policy must be denied to the last breath.