,
9 tweets,
2 min read
Read on Twitter
Regardless of who wins the prorogation litigation, this will fascinating. The courts are being invited to peer into the conundrum - the singularity, if you like - that lies at the heart of the constitution and raises the very question of what "Parliamentary sovereignty" means.
The conundrum may be posed like this. Parliament is sovereign, we all know that. But what is Parliament? The standard processes of summoning, dissolving and proroguing Parliament suggest that it is a body that exists (legally) by dint of royal proclamations.
Why do elections take place? Legally, because the Queen issues a proclamation calling a Parliament. Who dissolves Parliament? Legally, the Crown. How can a body be "sovereign" if its very legal constitution exists by virtue of something else - someone else?
Would Parliament exist - legally - if the Queen did not summon it? Whatever the conventions generally dictate, it is hard to see how such an ad hoc body would have legal standing. If the power of prorogation by the Crown has limits, what is the source of those limits?
In a sense, this is what the Civil War was all about. Charles I told Parliament to get lost, Parliament said "wanna fight about it" and won. But only temporarily. With the Restoration, the old model of Parliament summoned by the monarch was, legally speaking, restored.
Parliament's claim to being "sovereign" resides in its supremacy as a law-making body. It could make laws setting out its existence independently of its being summoned and dissolved by Royal proclamation.
But it has not done so. It has not, since the 17th century, asserted its sovereignty against the Crown. So it is moot whether, legally speaking, it is sovereign at all, whether anything beyond mere convention makes the UK other than an absolute monarchy.
What happened was that the Crown and Parliament reached a modus vivendi, whereby the Crown was whoever could control a majority in the House of Commons. Today, though, it is unclear whether "the Crown" does have a majority. So the question before the court is Humpty Dumpty's.
Interested to see @Prof_Phillipson’s letter in today’s Times making similar points. He describes ancient prerogatives as “like a loaded gun, lying hidden in the Constitution, waiting to be picked up and used by those ruthless enough to discard centuries old conventions”.
