On parliamentary sovereignty

111 Members of Parliament vote to take matters out of their own hands.

Yesterday, 111 Members of Parliament voted against parliamentary sovereignty. In speech after speech, and in the voting lobby afterwards, these MPs -- including 80 so-called Conservatives -- sent the clear signal that they thought Parliament was not competent to legislate on an important matter and so it should be left to others, by means of a referendum.

The foregoing paragraph is not altogether facetious. There is a great deal of muddled thinking about "parliamentary sovereignty" and part of this comes from it usually not being clear what this phrase actually means.

To begin with, the concept of sovereignty does not cover all the activities of Parliament. Resolutions of either House have no "sovereign" effect outside of the Palace of Westminster. Statutory Instruments passed by both Houses can be and sometimes are quashed by the Courts. Parliamentary debates and select committee reports are also not, in any meaningful way, "sovereign".

In fact the "sovereignty" goes to one specific activity of Parliament: the passing of primary legislation as "Acts of Parliament". But in strict constitutionalist terms, the Acts have this effect not because Parliament has passed a Bill but because they have been signed on behalf of the Crown (though not personally by the Queen).

And even then, these Acts are not always "sovereign". The Courts -- though rarely -- can disapply primary legislation when it conflicts with other legislation, perhaps most notably the Merchant Shipping Act 1988 which conflicted with the European Communities Act 1972. Some Scottish lawyers (including judges) have plausibly contended that the terms of the Act of Union 1707 mean that the doctrine of parliamentary sovereignty is not part of Scottish law. Moreover, one English Court of Appeal judge, Sir John Laws, has opined that there are fundamental common law rights which cannot be infringed even by primary legislation; 400 years ago another judge, Sir Edward Coke, said the same thing.

The correct position is subtle. As the recently retired Court of Appeal judge Sir Stephen Sedley points out in his excellent collection of essays (reviewed here), sovereignty actually lies in the combination of the "Crown in Parliament" and the "Crown in the Courts". Primary legislation only has the effect of "sovereignty" to the extent to which that is allowed by the Courts. Some lawyers would go so far to say that, in technical terms, "sovereignty of parliament" is merely a rule of statutory interpretation.

One does not have to go this far to see that "sovereignty of parliament" is a little more complicated than certain MPs seem to realise. Of course, one does not expect a certain type of MP to understand this: after all, those who call for the Human Rights Act 1998 to be repealed clearly do not grasp that this would simply mean an enlarged role for the European Court of Human Rights in Strasbourg.

If MPs genuinely do not want the United Kingdom to subject to European Union law, then it is open to them to repeal the European Communities Act 1972 and related legislation. The solution to their apparent problem is entirely in their own hands. Without the 1972 Act, the Courts will have no legal basis to implement EU law. But the MPs won't do that, of course. It would mean taking parliamentary sovereignty seriously.

David Allen Green is legal correspondent of the New Statesman. He also writes the Jack of Kent blog and for The Lawyer.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

Photo: Getty
Show Hide image

Theresa May could live to regret not putting Article 50 to a vote sooner

Today's Morning Call.

Theresa May will reveal her plan to Parliament, Downing Street has confirmed. They will seek to amend Labour's motion on Article 50 adding a note of support for the principle of triggering Article 50 by March 2017, in a bid to flush out the diehard Remainers.

Has the PM retreated under heavy fire or pulled off a clever gambit to take the wind out of Labour's sails while keeping her Brexit deal close to her chest? 

Well, as ever, you pays your money and you makes your choice. "May forced to reveal Brexit plan to head off Tory revolt" is the Guardian's splash. "PM caves in on plans for Brexit" is the i's take. "May goes into battle for Brexit" is the Telegraph's, while Ukip's Pravda aka the Express goes for "MPs to vote on EU exit today".

Who's right? Well, it's a bit of both. That the government has only conceded to reveal "a plan" might mean further banalities on a par with the PM's one-liner yesterday that she was seeking a "red white and blue Brexit" ie a special British deal. And they've been aided by a rare error by Labour's new star signing Keir Starmer. Hindsight is 20:20, but if he'd demanded a full-blown white paper the government would be in a trickier spot now. 

But make no mistake: the PM didn't want to be here. It's worth noting that if she had submitted Article 50 to a parliamentary vote at the start of the parliamentary year, when Labour's frontbench was still cobbled together from scotch-tape and Paul Flynn and the only opposition MP seemed to be Nicky Morgan, she'd have passed it by now - or, better still for the Tory party, she'd be in possession of a perfect excuse to reestablish the Conservative majority in the House of Lords. May's caution made her PM while her more reckless colleagues detonated - but she may have cause to regret her caution over the coming months and years.

PANNICK! AT THE SUPREME COURT

David Pannick, Gina Miller's barrister, has told the Supreme Court that it would be "quite extraordinary" if the government's case were upheld, as it would mean ministers could use prerogative powers to reduce a swathe of rights without parliamentary appeal. The case hinges on the question of whether or not triggering Article 50 represents a loss of rights, something only the legislature can do.  Jane Croft has the details in the FT 

SOMETHING OF A GAMBLE

Ministers are contemplating doing a deal with Nicola Sturgeon that would allow her to hold a second independence referendum, but only after Brexit is completed, Lindsay McIntosh reports in the Times. The right to hold a referendum is a reserved power. 

A BURKISH MOVE

Angela Merkel told a cheering crowd at the CDU conference that, where possible, the full-face veil should be banned in Germany. Although the remarks are being widely reported in the British press as a "U-Turn", Merkel has previously said the face veil is incompatible with integration and has called from them to be banned "where possible". In a boost for the Chancellor, Merkel was re-elected as party chairman with 89.5 per cent of the vote. Stefan Wagstyl has the story in the FT.

SOMEWHERE A CLOCK IS TICKING

Michael Barnier, the EU's chief Brexit negotiator, has reminded the United Kingdom that they will have just 15 to 18 months to negotiate the terms of exit when Article 50 is triggered, as the remaining time will be needed for the deal to secure legislative appeal.

LEN'S LAST STAND?

Len McCluskey has quit as general secretary of Unite in order to run for a third term, triggering a power struggle with big consequences for the Labour party. Though he starts as the frontrunner, he is more vulnerable now than he was in 2013. I write on his chances and possible opposition here.

AND NOW FOR SOMETHING COMPLETELY DIFFERENT

Emad asks if One Night Stand provides the most compelling account of sex and relationships in video games yet.

MUST READS

Theresa May is becoming adept at avoiding defeats says George

Liv Constable-Maxwell on what the Supreme Court protesters want

Theresa May risks becoming an accidental Europe wrecker, says Rafael Behr

Get Morning Call in your inbox every weekday - sign up for free here.

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to British politics.