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.)

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In your 30s? You missed out on £26,000 and you're not even protesting

The 1980s kids seem resigned to their fate - for now. 

Imagine you’re in your thirties, and you’re renting in a shared house, on roughly the same pay you earned five years ago. Now imagine you have a friend, also in their thirties. This friend owns their own home, gets pay rises every year and has a more generous pension to beat. In fact, they are twice as rich as you. 

When you try to talk about how worried you are about your financial situation, the friend shrugs and says: “I was in that situation too.”

Un-friend, right? But this is, in fact, reality. A study from the Institute for Fiscal Studies found that Brits in their early thirties have a median wealth of £27,000. But ten years ago, a thirty something had £53,000. In other words, that unbearable friend is just someone exactly the same as you, who is now in their forties. 

Not only do Brits born in the early 1980s have half the wealth they would have had if they were born in the 1970s, but they are the first generation to be in this position since World War II.  According to the IFS study, each cohort has got progressively richer. But then, just as the 1980s kids were reaching adulthood, a couple of things happened at once.

House prices raced ahead of wages. Employers made pensions less generous. And, at the crucial point that the 1980s kids were finding their feet in the jobs market, the recession struck. The 1980s kids didn’t manage to buy homes in time to take advantage of low mortgage rates. Instead, they are stuck paying increasing amounts of rent. 

If the wealth distribution between someone in their 30s and someone in their 40s is stark, this is only the starting point in intergenerational inequality. The IFS expects pensioners’ incomes to race ahead of workers in the coming decade. 

So why, given this unprecedented reversal in fortunes, are Brits in their early thirties not marching in the streets? Why are they not burning tyres outside the Treasury while shouting: “Give us out £26k back?” 

The obvious fact that no one is going to be protesting their granny’s good fortune aside, it seems one reason for the 1980s kids’ resignation is they are still in denial. One thirty something wrote to The Staggers that the idea of being able to buy a house had become too abstract to worry about. Instead:

“You just try and get through this month and then worry about next month, which is probably self-defeating, but I think it's quite tough to get in the mindset that you're going to put something by so maybe in 10 years you can buy a shoebox a two-hour train ride from where you actually want to be.”

Another reflected that “people keep saying ‘something will turn up’”.

The Staggers turned to our resident thirty something, Yo Zushi, for his thoughts. He agreed with the IFS analysis that the recession mattered:

"We were spoiled by an artificially inflated balloon of cheap credit and growing up was something you did… later. Then the crash came in 2007-2008, and it became something we couldn’t afford to do. 

I would have got round to becoming comfortably off, I tell myself, had I been given another ten years of amoral capitalist boom to do so. Many of those who were born in the early 1970s drifted along, took a nap and woke up in possession of a house, all mod cons and a decent-paying job. But we slightly younger Gen X-ers followed in their slipstream and somehow fell off the edge. Oh well. "

Will the inertia of the1980s kids last? Perhaps – but Zushi sees in the support for Jeremy Corbyn, a swell of feeling at last. “Our lack of access to the life we were promised in our teens has woken many of us up to why things suck. That’s a good thing. 

“And now we have Corbyn to help sort it all out. That’s not meant sarcastically – I really think he’ll do it.”