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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All the Premiership teams are competing to see who’s got the biggest stadium

It’s not just a financial, but a macho thing – the big clubs want to show off that they have a whopper.

Here in NW5, where we live noisily and fashionably, we are roughly equidistant from Arsenal and Spurs. We bought the house in 1963 for £5,000, which I mention constantly, to make everyone in the street pig sick. Back in 1963, we lived quietly and unfashionably; in fact, we could easily have been living in Loughton, Essex. Now it’s all changed. As have White Hart Lane and Highbury.

Both grounds are a few metres further away from us than they once were, or they will be when White Hart Lane is finished. The new stadium is a few metres to the north, while the Emirates is a few metres to the east.

Why am I saying metres? Like all football fans, I say a near-miss on goal was inches wide, a slow striker is a yard off his pace, and a ball player can turn on a sixpence. That’s more like it.

White Hart Lane, when finished, will hold 61,000 – a thousand more than the Emirates, har har. Meanwhile, Man City is still expanding, and will also hold about 60,000 by the time Pep Guardiola is into his stride. Chelsea will be next, when they get themselves sorted. So will Liverpool.

Man United’s Old Trafford can now hold over 75,000. Fair makes you proud to be alive at this time and enjoying the wonders of the Prem.

Then, of course, we have the New Wembley, architecturally wonderful, striking and stunning, a beacon of beauty for miles around. As they all are, these brave new stadiums. (No one says “stadia” in real life.)

The old stadiums, built between the wars, many of them by the Scottish architect Archibald Leitch (1865-1939), were also seen as wonders of the time, and all of them held far more than their modern counterparts. The record crowd at White Hart Lane was in 1938, when 75,038 came to see Spurs play Sunderland. Arsenal’s record at Highbury was also against Sunderland – in 1935, with 73,295. Wembley, which today can hold 90,000, had an official figure of 126,000 for the first Cup Final in 1923, but the true figure was at least 150,000, because so many broke in.

Back in 1901, when the Cup Final was held at Crystal Palace between Spurs and Sheffield United, there was a crowd of 110,820. Looking at old photos of the Crystal Palace finals, a lot of the ground seems to have been a grassy mound. Hard to believe fans could see.

Between the wars, thanks to Leitch, big clubs did have proper covered stands. Most fans stood on huge open concrete terraces, which remained till the 1990s. There were metal barriers, which were supposed to hold back sudden surges, but rarely did, so if you were caught in a surge, you were swept away or you fell over. Kids were hoisted over the adults’ heads and plonked at the front.

Getting refreshments was almost impossible, unless you caught the eye of a peanut seller who’d lob you a paper bag of Percy Dalton’s. Getting out for a pee was just as hard. You often came home with the back of your trousers soaked.

I used to be an expert on crowds as a lad. Rubbish on identifying a Spitfire from a Hurricane, but shit hot on match gates at Hampden Park and Ibrox. Answer: well over 100,000. Today’s new stadiums will never hold as many, but will cost trillions more. The money is coming from the £8bn that the Prem is getting from TV for three years.

You’d imagine that, with all this money flooding in, the clubs would be kinder to their fans, but no, they’re lashing out, and not just on new stadiums, but players and wages, directors and agents. Hence, so they say, they are having to put up ticket prices, causing protest campaigns at Arsenal and Liverpool. Arsène at Arsenal has admitted that he couldn’t afford to buy while the Emirates was being built. Pochettino is saying much the same at Spurs.

It’s not just a financial, but a macho thing – the big clubs want to show off that they have a whopper. In the end, only rich fans will be able to attend these supergrounds. Chelsea plans to have a private swimming pool under each new box, plus a wine cellar. Just like our street, really . . . 

Hunter Davies is a journalist, broadcaster and profilic author perhaps best known for writing about the Beatles. He is an ardent Tottenham fan and writes a regular column on football for the New Statesman.

This article first appeared in the 11 February 2016 issue of the New Statesman, The legacy of Europe's worst battle