UK constitution
of state explained by a professor of
constitutional theory during the 2019
prorogation case:
Do we need to reform this?
The constitution of our United Kingdom explained by
Stephen Tierney (T.), introduced as professor
of constitutional theory at Edinburgh
university, interviewed on the Today Programme,
BBC Radio 4, 18th September 2019 by John
Humphrys (H.) The interview was prompted by a
case in the Supreme Court concerning the
suspension ("prorogation") of Parliament. It
produced interesting, if mystifying, insights
into our constitution-at-work!
Audio link
Report of interview
H: By any standards the case the
Supreme Court is hearing is unusual even unique not
just because it deals with whether the queen was
misled over the suspension of parliament but
because there is a real question of whether it's a
matter for the courts at all.
Stephen Tierney is professor of constitutional
theory at Edinburgh university and an adviser to the
House of Lords constitutional committee. Good
morning to you.
What's your theory?
T: Well on the one hand you've got this argument
that the advice to prorogue is unlawful because
prorogation should not have a dodgy {sic} political
motive which it seems to have in this case therefore
it should be ?reviewable by the courts and on the
other hand you get this argument "Oh well it's high
politics – the courts have to keep out of this
H: Aha – "high politics" – could you stop it
there just for a second – "high politics means what
exactly?
T: Well, it's very fuzzy, I think it's entirely
unsatisfactory – the court looked very sceptical
yesterday when this was suggested. The courts get
involved in these things all the time – of high
political importance such as anti-terrorism law.
What we need to do here is pin down that this is a
prerogative power that is central to the government
of the country, central to parliament's very
supremacy, and that is the reason why the courts
should step back.
H: Right but there is no question but that the
courts do have the power to review things
governments do and (emphasis) stop it if it
is acting illegally.
T: Absolutely. And they do that because
Parliament has made law that tells them the limits
of the law. There are also certain prerogative
powers that parliament has limited for example the
power to dissolve parliament. We have a fixed-term
parliaments act. Parliament has said, "courts, we
now want you to regulate erm when elections can be
called and can't be called. The prerogative power
has never been limited by statute. For 300 years
Parliament has had the opportunity to limit it by
statute, it has chosen not to do so.
H: And .. describe what you mean by "limited by
statute".
T: Well, what I would mean would be the fixed
term parliaments act. So before that time the prime
minister could go to the queen at any time and say –
ahem – I would like a general election. We now have
a statute that says this can only happen every 5
years except in exceptional circumstances when
parliament votes "no confidence" for example.
H: That sounds on the face of it reasonable
enough but a lot of people think that act is a bit
of a "dog's breakfast"
T: It may well be a dog's breakfast but it is a
legal limitation. The point is that the prerogative
has not been subject to this and the prerogative,
like royal assent and various other residual
prerogatives are inherent to how parliament works.
Another big mistake is this idea that the crown and
parliament are somehow separate or oppositional. Our
system works on the basis of the supremacy of the
crown in parliament. We must realise that
these two institutions work together and the
supremacy of our system only makes sense if we
understand that they work together and can only
regulate each other.
H: And when we say "the crown in parliament" err
we don't actually mean parliament as it were
represents the crown because parliament is supreme
in our system isn't it?
T: Parliament is supreme but we often forget the
government sits in parliament ...
H: How, what does that mean?
T: Well, if the crown is being presented in this
case as the prime minister, the prime minister sits
in parliament, is err, enjoys the confidence of
parliament and can only make law through the consent
of parliament, appoints ministers through parliament
who are answerable to parliament. We often forget –
people talk about separation of powers as an
abstract doctrine – we do not have separation of
powers. Not only do we not have separation of
powers. our system works on the intimate
relationship between the powers that people assume
are separate.
H: And yet, every school child knows that the
crown does not have any power {corrects himself} the
monarch has no power. Must we differentiate between
the monarch and the crown?
T: Yes, absolutely, and another point here is
should we separate the advice given to the queen
from the act made by the queen in deciding to
prorogue – that is also an important point. But in
effect the executive works as the crown in many of
the operations of the state such as foreign affairs,
the war power etc.. So that is a very important
power that the executive has acquired, but the
executive sits in parliament and is controlled by
parliament and that is how the crown for 300 years
has been constrained in its operations.
H: And are we now seeing a fundamental change?
T: Well, if the courts make a decision here that
this is unlawful I think we will have seen the
courts enter into the central realm of supremacy in
our constitution in an unprecedented way.
H: Is that dangerous?
T: I don't think it's ... I think it's
illogical, errm, it may be an exceptional case given
the circumstances of this – in my view – very poor
decision to advise prorogation in this case. But if
it's part of a trend where the court thinks it can
review prerogative err prorogation
– why not also review royal assent, why not review
the content of statutes, and that would
fundamentally transform our constitution from a
political constitution to a legal constitution run
by the courts.
H: Stephen Tierney, thank
you very much.