A round-up of my podcast and radio stuff on the prorogation case – and some reflections on doing podcasts and radio to promote the public understanding of law

30th September 2019

Last week was a busy week for anyone with pretensions at being a commentator on constitutional law.

(Please note I am not, and do not claim to be, an expert on constitutional law – I enjoy applying what I do know about the law to emerging events and explaining complex legal things to lay people.)

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On the day the supreme court judgment was handed down I did a phone-in radio interview with James O’Brien for LBC.

I also did an “emergency” Remainiacs podcast with Schona Jolly QC and Naomi Smith.

A day or two later I did my first studio broadcasting for about seven years for a BBC Radio 4 episode of the Briefing Room, with David Aaronovitch.

And at the end of the week I did a FT politics podcast with Sebastian Payne (Whitehall correspondent), Jane Croft (courts correspondent) and Laura Hughes (political correspondent).

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The main reason I did these is that I think it important that those with an understanding of the law contribute at times of constitutional drama, else it will be left to others, including charlatans, who do not.

I also am getting more used to doing “voice work”, though I rather sound like Wednesday Addams with a Brummie accent.

I like writing, but I also like conversation – and so the format of podcasts suits me, and I am even thinking of starting my own (and perhaps doing audio versions of my longer posts here).

But I do dislike broadcasting – there is something artificial about it which triggers self-consciousness and awkwardness, and self-consciousness and awkwardness are the enemies of fluency and constructive discussion.  

(With the likes of James O’Brien and David Aaronovitch that is less of an issue, as you know they and those listening are genuinely interested in discussion – but even then it is odd to have the accompaniment of editors and producers intervening and presenters waving hands to those off-mic.  Trying to ignore the distractions make radio interviews broadcasts more performances than discussions.)

And I also dislike the gladiatorial and pseudo-“balanced” approach of many radio interviews, which may be good for those who enjoy confrontations but do little to either inform or inspire thought.

All that said, promoting the public understanding of law is a good thing and so I am glad I was able during last week’s momentous week for constitutional discussion to contribute to that understanding other than by typing, and I may do more.

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Please note I now have a Facebook page where I will be linking to my posts and podcasts, so you can share them with those who may be interested in the public understanding of law.

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Thank you for reading me on this new(ish) blog.

I expect to be blogging here more often, instead of spending time on Twitter.

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Comments are welcome but pre-moderated, and they will not be published if irksome.

22 thoughts on “A round-up of my podcast and radio stuff on the prorogation case – and some reflections on doing podcasts and radio to promote the public understanding of law”

  1. I have become very deaf, and I have to rely on sub-titles to understand what’s on TV. Podcasts are likewise difficult without a transcript. I’d guess that people with poor sight find it easier to follow podcasts than read blogs, though they might use text-to-speech to help.

    1. Transcripts are essential for podcasts imho. Very easy to and expertly done ones can be available in a few hours. See Scribie- sadly I don’t get commission for recommendations

  2. I can well understand your reservations about such broadcasts, but now, more than ever, it is essential that a willing audience can be properly informed on the legalities (or lack thereof) of our current situation. You reach a much wider audience via radio or TV than you can via blog or podcast. Alas, Brexit shows that many people don’t care to understand the situation we find ourselves in, but I’d like to believe that most people in the country are reasonable and want to make an informed decision (given the chance), so there has never been a greater need for impartial, insightful comment than now.

  3. I read with interest your dislike of broadcasting. Then I listened to your podcast and a radio interview.

    I can understand why you might not enjoy broadcasting, but you’re really good at it. As for ‘Wednesday Addams with a Brummie accent’, you just sound real.

    I for one think the broadcast media on this topic is better with your participation.

    All the best

    Mike

  4. Keep it up David. Try to overcome your aversion to broadcast. I treasure those programmes where there is genuine discussion. Don’t leave a gap for those with fixed personal agendas to fill. Broadcasters will always want to broadcast, and with high quality contributors absent, will just lower the quality bar until someone/anyone gets over it.

  5. Dear David

    I always enjoy your very relevant blogs and podcasts. You are also disarmingly and refreshingly frank about your own personal predilections, strengths and limitations (not really the right word, but I can’t think of a better one). It is good to have highly intelligent people like you around in a country which risks descending into bathos and even barbarism.

  6. Dear David – I thoroughly enjoyed your contribution to the Briefing Room debate. The one matter where I disagreed is the conclusion from all 4 experts – that we do not need a written constitution (too complicated, where does one start etc. etc.). All good and sensible points, but basically, in the absence of a written Constitution, it is left to experts to tell us what it is and where our rights are. In addition, I find it somewhat disturbing that we find out “how it all works” in times of crisis. More to the point, it is odd that it took 2 SC rulings (raised by a “private” individual born and bred outside these islands) to find out where the limitations of the powers of the Executive rest. But let me put one example to you – I am a French citizen and recently I sought to obtain French passports for all my 4 children (because of Brexit). I have lived in Scotland for over 40 years and all my children were born in Scotland. They are French, because of Article 18 of the French Code Civil – any child, born anywhere, of a French citizen, is French. “All” I had to do was complete the paper work (still ongoing). My question is, imagining a British citizen in my situation in a reverse way, where does he or she find what his or her children’s rights are? I suspect they are in immigration laws, and therefore subject to the vagaries of the Parliament, it being “sovereign”. Happy to be enlightened, but by and large I guess my concern is that British citizens do not know where their basic citizenship rights are to be found – leaving it to experts to leaf through old and dusty books or incomprehensible statutes. Sorry about the rant !!!!

    Kind regards

    1. With respect to the above points, I would ask how many times the executive has in the past acted unconstitutionally, but has remained unchallenged. This could occur either because we are ignorant of what our constitution says, or because individuals do not have the resources to make such a challenge. Is it not time to have a constitutional watch dog to bark when the executive intrudes on our rights ?

    2. On the nationality question, the position in the UK is not as simple as it seems to be in France, and given the UK’s complicated history of empire and the hot button nature of immigration, unsurprisingly there have been repeated changes to the law over the decades, but gov.uk does a reasonable job: https://www.gov.uk/check-british-citizenship “If you or your parents were born in the UK, you might automatically be a British citizen.”

      I didn’t hear the radio programme, David, but I’ll look it out specially. (Was it the Moral Maze the last time around?)

  7. I have now listened to the various discussions you have listed. I first got the vote (21) in the 1960s and only now realise some of the risks there are to our democratic process.
    I really appreciate your efforts and as a result feel more confident that I can sort the wheat from the considerable amount of chaff that is on show.

  8. Thank you so much for the help you have given us, especially over the past weeks of mayhem. It is so important that ordinary people like myself can have access to reliable information as to what is going on in our country at the present time. I shall be following your blog with interest over the coming weeks.

  9. It seems intuitive to me that a framework of principles – the British Constitution – provides that the check on unlawful behaviour by the British Government is all those Queen’s Counsellors in HM Courts. That are just as appointed by the Queen as Ministers of the Crown (of which the Prime Minister is one, with no super special Prime Minister powers of over-ride).

    Doesn’t the Queen say ‘yes’ to advice from the Privy Council, precisely because the lawfulness or not of the Government’s behaviour – should they act upon the assented to advice in a way that ignores the principle that Parliament is Sovereign – is tested by the ‘justice’ side of the scales?

    The Queen assents (if that’s the right word) to the court’s ruling, by default, as much as HM Government’s advice, as if to have two backstops. Like it’s the outsourcing of Sovereign powers from earlier centuries.

    Unlawful behaviour is checked by the judiciary.

    Unjust laws are checked by the legislature.

    (I think)

    Both those counter corrections depend on principles. The principles of MPs in Parliament to correct/annul the law – say, the law applied to Alan Turing, as attitudes in the country changed – the principles of those charged with upholding justice against unlawful behaviour no matter the individual British citizen, including those who sit in Parliament. If the Government will not abide by the principles of Parliamentary Sovereignty within its own house, can it really be surprised when it ends up at the end of the line of the Crown as the source of all justice? I might not be understanding this right, but we are not talking rules here or facts are we? – we are talking about the Government’s behaviour compared to minimum standards of behaviour expected under the British Constitution.

    Isn’t that true of everyone who has to respond to a R(on the application of …) summons to HM Courts, regardless of which particular law they are charged with breaking, isn’t always about behaviour – the behaviour of a human-being – and whether it is, or was, unlawful?

    If the Government tries to circumvent legislature enacted with the Queen’s assent and that’s fine, then doesn’t ‘the rule of law’ tend towards the Government ‘ruling’ and its behaviour being ‘unlawful’?

    Should a Prime Minister lose a VONC and refuse to resign – or ‘dare the Queen to sack him’ – then how is that not frustrating Parliament in the same way as the choice of action – to prorogue – within the constraints of the accepted ‘advice’ that was ruled to be unlawful? A Prime Minister refusing to resign, having lost the confidence of Parliament, is in the same position as the one who the Queen on behalf of Miller et al – British citizens – summoned to the Supreme Court to respond – a hearing of both sides in the case – as heard by her QCs and whose ruling she implicitly assented to?

    I would not even attempt to read what a law says – I believe it’s more complicated than reading the words – principles however are something that can be made sense of by a general public like me. I am not sure whether I have or not, but in the abstract it seems reasonable that public understanding – it’s about behaviour – is something we could all get our heads around. A principle that damaging other people’s property is ‘unlawful’ and the deliberate brick thrown through a window by an individual is the unlawful behaviour that, in the public interest, with a reasonable chance of conviction, ends up landing that individual in HM Courts.

    I suppose my question is ‘what is the difference between a Government breaking the law under the Benn Act and the same one behaving in a way that frustrates Parliament by ignoring anything but a warrant for contempt of court serving upon them by a policeman knocking at the Number 10 door?’

    It feels like the same thing and the same behaviour. I’m curious as to whether those that work in the justice system would see it as such?

  10. (I forgot with previous comment)

    I really would not like a written constitution – we’ve managed for centuries – and it makes Parliamentary Democracy flexible and responsive.

    Rules can be about arguing semantics – how do you even define what is abuse of power or some such in words – the behaviour of the person in a framework of principles for those who hold public office – like the Hippocratic oath, whatever the oaths are for barristers – seem to me much more powerful.

    People who behave badly love rules and they’ll argue all day long, and seek the gaps. To my non-expert eye, it feels like the Supreme Court is, and was, all the more effective for an unwritten constitution – and that we would lose a powerful method of holding people to account just because the latest incarnations of Governments are behaving in unprecedented ways. The Supreme Court heard a case containing unprecedented behaviour, had the tools to deal with it and avoided setting a precedent themselves.

    By implication, with a written constitution, unprecedented behaviour will have no applicable legislation because it would not have been predicted and accounted for.

    Scientific principles – the scientific method – mean that ‘the rule’ that sun orbits the earth from way back in ancient history, through the lens of rules, not principles, results in unprecedented observations of the actual nature of the universe, as ‘breaking the geocentric rule’ and therefore wrong.

    In a framework of scientific principles, the previous understanding is tested against those and compared to the potential new one.

    1. Your final thought seems confused. The scientific method applies to observations about the physical universe. Politics, as a facet of human behaviour, cannot validly be compared with planets or particles which have no choice but to behave in accordance with the laws of physics. It is only our imperfect understanding of these laws which is tested by the scientific method. A written constitution can evolve just as readily as an unwritten one, provided there is a mechanism for doing so. An example of this is found in the Irish system, the Convention on the Constitution.

      1. Interesting comments, but as regards a written constitution or no written constitution, I am clear that the UK needs one urgently. Having read recently a constitutional lawyer commenting on the Miller case 2, he made the subtle but good point that in the UK it is more appropriate to discuss the “balance” of powers, rather than what most people focus on when debating democracy (a subject calling for its own debate); which is the “separation” of powers. It is this legal anomaly that has led, again according to the same legal commentator, to the Executive abrogating for itself more and more powers, unchecked, or left to a private citizen to challenge (twice!). Flexibility is fine as a principle (if that’s what it is), but we are concerned here with civil rights affecting millions; not some legal niceties left to experts to discuss in the cosiness of libraries and tutorials or in the HoC. Lastly, I am not a scientist, and therefore will leave it to the scientists to analyse the parallels, analogies, metaphors etc., but during the debate on Radio 4 the constitutional experts participating suggested that it would be too difficult, or complicated – an extraordinary view given what scientists have achieved. In a nutshell, are we suggesting that we can land a man on the moon, and more beside, but can’t write a constitution fit for the 21st century because flexibility, responsiveness and centuries of dubious practices and abuses are preferable? I think not.

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