Did I lie to the Queen?
What really happened in 2019 and my response to the charge of lying
This is the first in a monthly series on the constitution.
There was a long run up to the decision to prorogue Parliament in August 2019. Baroness May of Maidenhead reports in her memoirs that I suggested it to her when she was Prime Minister, but that she did not want to do it.
Once Boris Johnson became Prime Minister, I certainly suggested it again and discussed it with Dominic Cummings and the Attorney General, Geoffrey Cox. It did not occur to anyone that this use of prerogative power, that is, the power of the Queen exercised on the advice of the Prime Minister, was justiciable, let alone unlawful. It was thought that even the increasingly aggressive judicial activism of the Supreme Court under Baroness Hale would not presume to intrude in such a matter.
Once the decision was taken by the Prime Minister and formal advice given to the Queen, the prorogation had to be approved by the Privy Council under the Prorogation Act of 1867. This was why I needed to travel to Balmoral, as I held the mainly honorific post of Lord President of the Council. I went with the Chief Whip, Mark Spencer, and the Lord Privy Seal and Leader of the House of Lords, Baroness Evans of Bowes Park.
It was all meant to be very secret, but that inevitably did not last. The three of us flew from Heathrow to Aberdeen, and as we were waiting to board the flight met a former Gentleman Usher of the Black Rod who, being an intelligent man, realised immediately why three Privy Counsellors were going to Aberdeen. However, the cover had been more fully blown by a leak to the media, so by the time we landed our task was already being reported.
As we arrived, all three of our telephones rang, as a remote Cabinet meeting was being held to approve the decision. It was slightly hard to concentrate on the details while getting off the plane and being stopped for selfies. Naturally, the people who stopped me were unaware that the phone call I was on was with the Prime Minister. Fortunately, I knew the plan already, so was prepared.
At Aberdeen, we were met by a charabanc sent from Balmoral, and had an amusing journey accompanied by the Queen’s hairdresser. It was a role he had filled since 1997, and he regaled us with anecdotes, not least that the first time he had cut the Queen’s hair he had been so nervous that he had hardly dared breathe on her, so turned away to take each breath. As we neared Balmoral, we saw a satellite TV van take the high road to the front entrance while we took the low road to the back entrance. This was not, however, an efficacious attempt at discretion, as the story was already out.
When we arrived, we had been warned by the Privy Council Secretariat to expect a frosty reception. When I first became Lord President, I was told that the Queen disliked being disturbed by Council meetings when at Balmoral or Sandringham. It was also wryly noted that important Ministers who regularly found excuses not to attend routine meetings of the Council were always remarkably free for the ones in the Queen’s private residences. However, nothing could have been further from the truth. We were warmly welcomed by officials and, while we were waiting for the Council to start, Admiral Lawrence came to greet us, which I thought an exceptionally polite gesture.
As Lord President, before each Council I was lucky enough to have an audience of the Queen. This is, of course, confidential, so I cannot say was said, but its tone was invariably friendly and surprisingly informal. On this occasion we were joined by an elderly corgi, which the Queen would not allow to attend the Council itself, so the meeting began with the incongruous sight of our Sovereign bending down to usher out a deaf corgi from the room.
Privy Council meetings are also secret. Every Counsellor swears an oath to maintain the confidentiality of proceedings. However, one Council has been filmed, so the process is public. The Privy Council is not a discussion group, it is a confirmatory body for decisions already taken by the Government. It takes place standing up and is brief. The Lord President reads out the Order that the Council is to make and the Sovereign says ‘Approved’. That is it. There is no advice or discussion of policy.
After all Councils, the Queen chatted to her Counsellors before they left. Part of her great charm was to make people feel comfortable and at ease, and at Balmoral this was especially true. She even apologised for making us travel so far, whereas we would all have gone any distance for our Sovereign. On only one thing was Her Majesty disobeyed, she wanted us to leave by the main entrance because she had heard that her friend, Alastair Bruce, was there for Sky TV waiting for us and she did not want him to be disappointed; not least because he knew perfectly well where the back entrance was, but was too polite to go there. Nonetheless, we left as we had arrived and went back to Aberdeen, although without the Queen’s hairdresser.
Prorogation is a normal part of the Parliamentary cycle. It brings one session to an end and starts a fresh one. Any Parliamentary business that has not been completed falls, unless specifically rolled over, so most Bills that have not yet become Acts of Parliament make no further progress. It is a routine matter that stops Parliament becoming clogged up with proposals that will get nowhere. It allows the Government, via the Sovereign, to set out its plans for the future when Parliament is reopened.
Most sessions last about a year, although there is no fixed rule. However, there had been no prorogation since the 2017 election so, at over two years, that session had become unusually long.
There was no objection to prorogation in principle. It was the length of time before reopening that caused the row although, as I will set out below, this achieved nothing of benefit for the Government.
The Parliamentary session from 2017 to 2019 was a particularly difficult and unusual one. The Conservatives did not have an overall majority, and were dependent on the cooperation of the Democratic Unionists for control. This is a matter of the House of Commons Standing Orders. The Government of the day, under Standing Order 14, has control of the Business of the House. This is crucial, because it provides accountability for what happens. Decisions, especially legislative ones, are the matters on which voters judge governments and, as long as they have a mandate, they must be allowed to govern, or there must be a general election.
Unfortunately, the ridiculous Fixed-Term Parliaments Act (FTPA), which had been introduced by the Cameron-Clegg coalition in 2011, had completely failed to work and also went completely against the grain of the constitution. That it had not worked is shown by the fact that although, in theory, it fixed a five-year term for each Parliament, we had had an election in 2017, just two years after the previous one and, indeed, we had another one in 2019, both of which ought not to have been possible. However, political reality overrode it on both occasions.
That it did not go with the grain of the constitution was far more damaging. Until the FTPA was introduced, a government with a difficult agenda would have made it a vote of confidence which, if it had lost, would have caused a general election. If any MPs on the government’s benches did not support the government in such a vote, they would lose the whip and, therefore, not be eligible to stand for their party if an election ensued. A confidence vote was, therefore, and is once again now the FTPA has been repealed, high stakes for Prime Minister who calls it, who could lose an election, and also for any MP who is minded to rebel. This could not happen under the FTPA, as the confidence vote had to be in a specific form and could not simply be attached to other business. This led to zombie government. MPs could rebel freely against their government’s policies but then back it on a confidence vote the next day.
The FTPA also opened the door for the Speaker, John Bercow, to undermine the basic principle that the government of the day controls the business. Working with the opposition, together with die-hard Remainers on the Tory benches, he allowed a number of motions that were clearly not permissible under Standing Orders or the precedent set out in Erskine May. This led, in effect, to a shadow government.
These MPs, Bercow himself, Hilary Benn, Oliver Letwin and others, had no mandate from the electorate, but were able to pass legislation by hijacking the Parliamentary timetable with the Speaker’s connivance and enthusiasm. The normal clearing system for such activity, a general election, was frustrated by the FTPA. This meant that there were almost two governments, the one in Whitehall and an opposition in Westminster that could legislate on certain issues but had no coherent plan, nor any possibility of an overall majority for general business, nor any accountability by way of questions or statements.
Unlike America, the UK does not have a separation of powers, so gridlock between the executive and legislature is not part of our normal democratic process, and had not been since the rows of the late 17th Century.
This is where prorogation comes in. It had, historically, been used by the Crown to pause Parliament, especially in the House of Commons, when events there were going against the government’s intention. In a democratic age, when the mandate to govern is held by the Party and the Prime Minister with the majority of MPs, a disconnexion between the two will be rare. Hence, prorogation had become a routine, formal mechanism, rather than one of practical use.
In 2019, it had a practical use.
At prorogation, all Bills that have not received Royal Assent fall. The reason I was advocating prorogation was to stop the passing of the European Union (Withdrawal) (No. 2) Act 2019 - more commonly known as the Benn Act - which forced the Prime Minister to ask for an extension to our already delayed departure from the European Union. The only other way to stop it would have been the Crown’s power of veto, but it had not been used since the reign of Queen Anne, and I did not think it could be properly revived. However, prorogation finishes off dozens of Private Member’s Bills every year; it is routine. Allowing it to end the Benn Act, or ‘Surrender Act’, as it became known, would have been entirely legitimate.
Amazingly, this was bungled, in spite of my pleadings, and an attempt to delay the Bill in the House of Lords until prorogation failed. Royal Assent was given to the Benn Act immediately prior to prorogation, so the one real purpose of it was frustrated. The only thing achieved was the restoration of the conference recess of three weeks, which in and of itself was trivial.
Crucially, to stop the Benn Act a prorogation of twenty-four hours would have been sufficient. The three weeks were of no use in controlling the order paper. So, as Horace put it, ‘Mountains will go into labour and a silly little mouse will be born’. Although the main purpose of prorogation had failed, the process was, nonetheless, challenged in the courts by campaigners who wanted to stop Brexit. The English High Court ruled in favour, so the challengers took their case to the Supreme Court.
It was the three weeks recess that then became the centre of the argument. The judges became obsessed with the thought that a yearlong prorogation could be ordered and the Crown would have no choice but to agree, based on the principle that the Sovereign must take the Advice of the Prime Minister.
As a general constitutional principle, the Sovereign must take the Advice of a Prime Minister. The Bagehot formula is that the King or Queen has ‘the right to be consulted, the right to encourage, the right to warn’, but if these three rights have been used and the Prime Minister insists, then the Sovereign must give way. Baldly stated, this makes it sound as if all the prerogative powers of the Crown could be arbitrarily used by a potentially rogue Prime Minister.
This is not so, because before the Advice can be given, there are a variety of protections.
First of all, the Prime Minister needs to see the Sovereign to give advice. This would not be expedited if the ‘Magic Circle’ of the Sovereign’s Private Secretary, the Cabinet Secretary and the Prime Minister’s Principal Private Secretary were all concerned that the Prime Minister’s advice was beyond the norms of the constitution. It is rumoured that this ‘Magic Circle’ made sure that Boris Johnson could not ask the Queen for a dissolution when a number of his Ministers resigned in 2022.
Second, there is the Cabinet. The Prime Minister needs the support of the Cabinet and they can resign if they believe a Prime Minister is going too far.
Third, the Prime Minister must retain the confidence of the House of Commons and, once that Parliament has ended, face a general election where all the decisions made will be judged by the voters. The Supreme Court had no interest in this democratic safeguard, because in its arrogance it assumed that the Court was the only barrier to despotism. In fact, it decided to replace political and democratically accountable decision making with its own heavily politicised and pro-European prejudices.
All these protections are in place to protect the absolutely final reserve power, that the Monarch will say no. In a democracy with a constitutional monarch, this must be avoided. Hence, the FTPA is, once again, a villain. George V, rather than say ‘no’ to Herbert Asquith in 1910, said ‘yes - but you must have an election first’. This approach protected both the King and democracy, but was not an option open to Elizabeth II. The recourse to the ultimate and speedy decision making by the people had been removed by the FTPA, although this turned out to be a delay rather than a more serious problem.
The concentration on the possibility of a yearlong prorogation was only one of the Supreme Court’s errors. The one that showed the greatest, albeit completely flawed, political ingenuity to circumvent the constitution was the idea that prorogation was not a proceeding in Parliament. This is because under the 1689 Bill of Rights, proceedings in Parliament may not be challenged outside Parliament. This is a fundamental protection for the legislature against judicial and, indeed, regal interference in its activities. It has been, historically, a crucial safeguard for the decision making of each House individually and also for the concept of Parliamentary sovereignty. An Act of Parliament cannot be questioned on the grounds of procedural irregularity. Once it has received Royal Assent it is the law, and this gives certainty to the legal system.
However, Parliament is not the two Houses separately, it is more than that, as anyone who knows even a smidgen of history is aware. Parliament is ‘the Sovereign in Parliament’. Its origins are as a body of advisors to the Crown, which became the ultimate lawgiver. An Act of Parliament needs the consent of the House of Commons, the House of Lords and the Sovereign, all of whom must agree on the final text. The last stage, Royal Assent, is an essential part of the process, without it, no Act is valid.
Parliament begins with the State Opening, a process normally carried out, at least in the reign of Elizabeth II, by the Sovereign in person. This symbolises the reality of Parliament as ‘the Sovereign in Parliament’. The Lords and the Commons assemble with the Crown as one body. They then divide up to deliberate separately, a practice of medieval origin which allowed the Commons more freedom of discussion. The same happens in reverse when Parliament is prorogued. The Sovereign, now normally by commission, calls the Lords and the Commons together, makes a speech and ends that session of Parliament. It is only by modern practice that this is done on behalf of the Monarch, but the King could still do it in person should he wish, or if the Prime Minister should advise him to do so. The Sovereign’s speech opens and closes Parliament. Indeed, it is only at these two points that Parliament is together as a body, rather than deliberating separately as the two Houses. It is not something that happens to Parliament, it is Parliament. The Supreme Court could not have been ignorant of this, but it was politically inconvenient to Baroness Hale, so the reality was ignored.
When prorogation was first discussed, no one thought it was conceivably unlawful or unconstitutional. Indeed, the High Court, which had more constitutional expertise than the Supreme Court, agreed with the Government’s position. It threw out the legal challenge, in a clear judgement that made the Supreme Court’s ruling all the more bizarre. This ruling was, in truth, a highly political judgement by an activist court.
Not a single one of the judges who ruled on it has ever been identified as a supporter of Brexit, and a number of them had said disparaging things about it. Baroness Hale proved herself to be an incorrigible show-off and was flexing the muscles of a court against the democratic arm of the constitution. Judges love power as much as anyone else, and her Supreme Court was fundamentally jealous of Parliamentary sovereignty. It would have preferred a more European, codified constitution to the one that has developed in the United Kingdom. The Baroness’ hostility towards the Conservatives has been shown by her subsequent votes in the House of Lords, where she consistently voted, when she deigned to turn up, against Rishi Sunak’s policies.
The anti-Brexit judges won this one round against the politicians. However, in the December 2019 election the British voters had their say, and rejected the Supreme Court’s Remainer instincts. Britain then left the European Union on 31st January 2020.
Did Boris or I lie to the Queen? No. The reasons for prorogation, which was, in any case, long overdue, were entirely constitutional and legitimate, and it was no business of the courts.
Did the Supreme Court seek to subvert democracy and the Brexit vote? Yes.
What the Queen herself thought, the Privy Council oath prohibits me from revealing.
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The "Supreme Court", like many a Blair-era innovation, is an alien implant in the British constitutional system and needs to be uprooted.
I remember these events. Thank you for the back-story. You are a fine chronicler.