UK: Lord Sumption suggests creation of inner privy council to advise Queen in face of proroguing
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Lord Sumption
The Queen should be kept out of the Brexit controversy with the establishment of an inner privy council to advise her on proroguing Parliament, Lord Sumption has said.
Writing for The Times, the retired UK Supreme Court justice said that the legal challenge to stop Boris Johnson from suspending Parliament in order to push through a no-deal would be futile.
He warned that, under constitutional convention, the Queen would have no choice but to agree to a suspension her prime minister asks for.
He suggested that it would be better if a committee of privy counsellors advise her on the constitutional propriety of requests by a future prime minister.
The comments come as members of Mr Johnson’s campaign suggested he would suspend Parliament in the last two weeks of October under the pretext of holding a new Queen’s Speech at the beginning of November.
This would mean Parliament was not sitting in the fortnight leading up to a potential no-deal Brexit and would be unable to force Mr Johnson to seek a further extension.
Both former prime minister Sir John Major and Gina Miller, the campaigner who challenged the UK government over Article 50, have said they would seek judicial review of any such move.
Lord Sumption warned, however, that they would likely fail.
He said proroguing Parliament was a matter of constitutional convention and not law.
“Judicial review is concerned with acts of public bodies that are said to be unlawful,” he said.
“Conventions are different. They are rules but not legal rules, and breach of them is not necessarily contrary to law. It follows that if ministers advise the monarch to do something contrary to a convention, it will be unconstitutional, but may yet be lawful, and so beyond the reach of the courts.”
He suggested a committee of privy counsellors could advise the Queen – and allow her to overrule her prime minister in certain instances.
“Unlike a court [it] can assume the function of advising the monarch on both the legal and conventional limits of the use that ministers can make of her constitutional powers,” he proposed.
“No other arrangement can be expected to protect the public from ministerial abuse of the royal prerogative while shielding the monarch from personal involvement in politics.”
Such a body would need to be enabled by primary legislation.
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