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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The joy of only winning once: why England should be proud of 1966

We feel the glory of that triumphant moment, 50 years ago, all the more because of all the other occasions when we have failed to win.

There’s a phrase in football that I really hate. It used to be “Thirty years of hurt”. Each time the England team crashes out of a major tournament it gets regurgitated with extra years added. Rather predictably, when England lost to Iceland in Euro 2016, it became “Fifty years of hurt”. We’ve never won the European Championship and in 17 attempts to win the World Cup we have only won once. I’m going to tell you why that’s a record to cherish.

I was seven in 1966. Our telly was broken so I had to watch the World Cup final with a neighbour. I sat squeezed on my friend Colin’s settee as his dad cheered on England with phrases like “Sock it to them Bobby”, as old fashioned now as a football rattle. When England took the lead for the second time I remember thinking, what will it feel like, when we English are actually Champions of the World. Not long after I knew. It felt good.

Wembley Stadium, 30 July 1966, was our only ever World Cup win. But let’s imagine what it would be like if, as with our rivals, we’d won it many times? Brazil have been World Champions on five occasions, Germany four, and Italy four. Most England fans would be “over the moon” if they could boast a similarly glorious record. They’re wrong. I believe it’s wonderful that we’ve only triumphed once. We all share that one single powerful memory. Sometimes in life less is definitely more.

Something extraordinary has happened. Few of us are even old enough to remember, but somehow, we all know everything that happened that day. Even if you care little about the beautiful game, I’m going to bet that you can recall as many as five iconic moments from 50 years ago. You will have clearly in your mind the BBC commentator Kenneth Wolstenholme’s famous lines, as Geoff Hurst tore down the pitch to score his hat-trick: “Some people are on the pitch. They think it’s all over. It is now”. And it was. 4 - 2 to England against West Germany. Thirty minutes earlier the Germans had equalised in the dying moments of the second half to take the game to extra time.

More drama we all share: Geoff Hurst’s second goal. Or the goal that wasn’t, as technology has since, I think, conclusively proved. The shot that crashed off the cross bar and did or didn’t cross the line. Of course, even if you weren’t alive at the time, you will know that the linesman, one Tofiq Bakhramov, from Azerbaijan (often incorrectly referred to as “Russian”) could speak not a word of English, signalled it as a goal.

Then there’s the England Captain, the oh-so-young and handsome Bobby Moore. The very embodiment of the era. You can picture him now wiping his muddy hands on his white shorts before he shakes hands with a youthful Queen Elizabeth. Later you see him lifted aloft by his team mates holding the small golden Jules Rimet trophy.

How incredible, how simply marvellous that as a nation we share such golden memories. How sad for the Brazilians and Germans. Their more numerous triumphs are dissipated through the generations. In those countries each generation will remember each victory but not with the intensity with which we English still celebrate 1966. It’s as if sex was best the first time. The first cut is the deepest.

On Colin’s dad’s TV the pictures were black and white and so were the flags. Recently I looked at the full colour Pathe newsreel of the game. It’s the red, white and blue of the Union Jack that dominates. The red cross of Saint George didn’t really come into prominence until the Nineties. The left don’t like flags much, unless they’re “deepest red”. Certainly not the Union Flag. It smacks of imperialism perhaps. In 1966 we didn’t seem to know if we were English or British. Maybe there was, and still is, something admirable and casual about not knowing who we are or what is our proper flag. 

Twelve years later I’m in Cuba at the “World Festival of Youth” – the only occasion I’ve represented my country. It was my chance to march into a stadium under my nation’s flag. Sadly, it never happened as my fellow delegates argued for hours over what, if any, flag we British should walk behind. The delegation leaders – you will have heard of them now, but they were young and unknown then – Peter Mandelson, Trevor Phillips and Charles Clarke, had to find a way out of this impasse. In the end, each delegation walked into the stadium behind their flag, except the British. Poor Mandelson stood alone for hours holding Union Jack, sweltering in the tropical sun. No other country seemed to have a problem with their flag. I guess theirs speak of revolution; ours of colonialism.

On Saturday 30 July BBC Radio 2 will commemorate the 50th anniversary of the 1966 World Cup Final, live from Wembley Arena. Such a celebration is only possible because on 16 occasions we failed to win that trophy. Let’s banish this idea of “Fifty years of hurt” once and for all and embrace the joy of only winning once.

Phil Jones edits the Jeremy Vine Show on BBC Radio 2. On Saturday 30 July the station celebrates the 50th anniversary of the 1966 World Cup Final live from Wembley Arena, telling the story of football’s most famous match, minute by minuteTickets are available from: www.wc66.org