The future of the EU and the UK, post-Brexit

OK, now things are going to get a little complicated. Those of you who are not well down the rabbit hole on this issue, may want to avert your eyes.

The issue for today is "Queen's Consent," which I am just now learning about this morning. It is not the same thing as "Royal consent," which is what the Queen gives for ordinary legislation in the UK to transform Parliament approved legislation into a law.

"Queen's Consent" relates to certain prerogative powers that the Queen has empowered the government (Boris Johnson) with such as conducting foreign affairs and negotiating treaties. This is usually a formality, because the government is usually proposing the legislation. But here, we have a case where the government opposes the legislation.

This is all quite complex and very different from how we do things here in the USA. Here is a discussion of "Queen's Consent" from an article posted on the website (Blog) of the London School of Economics and Political Science. This is without question one of the top universities in the world and the primary people running it are predominately left leaning. But this article is not intended to be political, rather just a cold technical legal analysis of the facts.

Proponents of the new Bill to stop No Deal face a significant dilemma over Queen’s Consent

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 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 agree or 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.​

So in summary, it appears that the Benn-Burt bill may actually require Boris Johnson's approval to make it into law. All he has to do is not provide "Queen's consent," which it is up to him to provide.

Of course if this is his strategy, the Remainers resistance in Parliament is sure to reach a maximum crescendo of rage. If this analysis is correct, then all of the work on passing this bill has been for naught and with Parliament dismissed, there will be no time to address or fix it. In fact, since the bill will not have been properly finalized before Parliament was prorogued (which will happen by next Thursday at the very latest), that legislation will be effectively cast into oblivion, where all unfinished parliamentary work goes at the time of prorogation.

Is this why Jacob Rees Mogg was slumbering openly on the benches while this bill was being debated there last week? I do not know for sure, but we will find out soon enough.

 

The Tories will put up one of their own in opposition to Speaker John Bercow in the next elections. It is apparently the convention that Speakers run in elections unopposed by candidates from any of the major parties. But it is also convention that Parliamentary Speakers are impartial and unbiased, which Speaker Bercow clearly no longer is.

Tories WILL stand a candidate against John Bercow and attempt to end his political career after Speaker tore up Commons rules this week

The Prime Minister will try to end John Bercow's political career at the next election by standing a Conservative candidate against him. In a declaration of war against the controversial Speaker, Tory HQ will put up a prospective MP in his Buckingham seat.

The move comes after Mr Bercow tore up Commons rules this week to allow backbenchers to seize control of the agenda and pass a law delaying Brexit. Over the past two years he has repeatedly been accused of siding with pro-Remain MPs to try to undermine the Government.

A senior Conservative source told the Daily Mail that Mr Bercow, who was a Tory MP before becoming Speaker, had 'long given up any pretence of impartiality'. 'The constituents of Buckingham shouldn't be denied the opportunity to vote for a Conservative MP any longer,' they added.​

 

According to the mass media, Boris Johnson may well be arrested and thrown in jail, if he refuses to request another extension from the EU.

Boris Johnson warned he could be jailed if he refuses to delay Brexit

Boris Johnson could go to prison if he ignores a bill requiring him to request a Brexit delay, according to a former director of public prosecutions. Ken Macdonald told Sky News on Saturday that the prime minister could face serious consequences if he refuses to ask Brussels for a Brexit extension. A court, Macdonald said, would order that "the law should be followed."

"A refusal in the face of that would amount to contempt of court," which could "find that person in prison," he said. Macdonald held the prosecutor post between 2003 and 2008.​

Can you imagine the 'street cred' that this would anoint Boris Johnson with? Going to jail in his effort to stand behind the will of the people and their choice to Leave the EU as decided by the 2016 Brexit Referendum?

He would instantly achieve martyr status and would become the closest thing to Nelson Mandela that the UK currently has to offer. He would be a true hero going into the next election the likes of which the UK has not seen for a very long time.

Yeah, that sounds like a great idea, you Remainer numbskulls. Johnson will be forever grateful afterwards, even if he never tells you so.

But this all presumes that this legislation will actually become the "law," which as explained a few posts earlier, is not assured yet by any means.

 

We shall see.

 

Tories going up in the polls, while Labour going down:

Jeremy Corbyn support plummets as Boris Johnson snatches 14 point lead in new poll

The Conservative leader’s hardball tactics and his “do or die” Brexit pledge are proving popular with voters, with 35 percent of respondents throwing their support behind his party ahead of Labour’s 21 percent. The YouGov ballot conducted between September 5 and 6 for The Sunday Times gave the Liberal Democrats, led by Jo Swinson, 19 percent of the vote while Nigel Farage’s Brexit Party was on 12 percent.

It showed support for Labour had fallen by four points since an earlier poll on September 2-3, with the Lib Dems and Brexit Party mopping up the votes while backing for the Tories remained the same. So far Mr Johnson has shown no signs he is prepared to abandon his key campaign pledge to deliver Brexit by Halloween with or without a deal.​

 

Boris Johnson will sabotage the extension, if there isn't a deal, according to unnamed sources inside #10. And he will take "a chainsaw to anything" standing in his way.

His government also appears to be taking steps that would sabotage the functioning of the EU - by refusing to appoint a Commisioner to the EU from the UK - then the commission cannot constitute itself under the terms of the EU constitution.

A senior Number 10 source told the Times: “If there isn’t a deal by the 18th we will sabotage the extension.” Another source said Mr Johnson was prepared to “take a chainsaw to anything” standing in its way.

This comes after reports of Mr Johnson will attempt to provoke Brussels chiefs into kicking the UK out of the EU. Mr Johnson’s *advisers have found an *obscure EU law which they claim would *enable the UK to paralyse the ruling European Commission if the UK is still part of the EU on October 31, Mirror Online has reported.

The Commission needs to have 28 commissioners by November 1, as this will be one for each member state. But Mr Johnson will refuse to *supply one from Britain, which means the Commission cannot legally constitute itself. A No.10 source said: “We will play the EU at their own game and fight fire with fire.”

https://www.express.co.uk/news/poli...oris-johnson-no-deal-election-tory-amber-rudd​

Probably better just to go ahead and leave on October 31, right on schedule.