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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.