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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As children face a mental health crisis, should schools take the lead in fighting it?

There is a crisis affecting the mental health of England's young people. As Children’s Mental Health Week gets underway, the government must put schools at the heart of mental health services.

Three children in every classroom have a diagnosable mental health condition. Half of these are conduct (behavioural) disorders, while one third are emotional disorders such as stress, anxiety and depression, which often becomes outwardly apparent through self-harm. There was a staggering 52 per cent jump in hospital admissions for children and young people who had self-harmed between 2009 and 2015.

Schools and teachers have consistently reported the scale of the problem since 2009. Last year, over half of teachers reported that more of their pupils experience mental health problems than in the past. But teachers also consistently report how ill-equipped they feel to meet pupils’ mental health needs, and often cite a lack of training, expertise and support from NHS services.

Part of the reason for the increased pressure on schools is that there are now fewer ‘early intervention’ and low-level mental health services based in the community. Cuts to local authority budgets since 2010 have resulted in significant erosion of these services, despite strong evidence of their effectiveness in reducing escalation and crises further down the line. According to the parliamentary Health Select Committee, this has led specialist child and adolescent mental health services (CAMHS) to become inundated with more severe and complex cases that have been allowed to escalate through a lack of early treatment.

This matters.  Allowing the mental health of children and young people to deteriorate to this extent will prevent us from creating a healthy, happy, economically productive society.

So what part should schools play in government’s response?

During the last parliament, the government played down the role of schools in meeting pupils’ mental health and wider emotional needs. Michael Gove, during his tenure as education secretary, made a conscious decision to move away from the Every Child Matters framework, which obliged local authorities to work with schools and health services to improve the ‘physical and mental wellbeing’ of all children in their local area. He argued that schools policy needed to focus more heavily on academic outcomes and educational rigour, and references to children’s wellbeing were removed from the Ofsted framework. This created a false dichotomy between academic standards and pupils’ mental health - why can’t a school promote both?

But since Gove was replaced by Nicky Morgan, a new window of opportunity for meaningful reform has opened. Following her appointment in 2014, Morgan has called on schools to promote resilience and protect pupil’s mental health when problems first arise. The Department for Education has made tentative steps in this direction, publishing advice on counselling in schools and announcing a new pilot scheme to link schools with NHS services.

However, much more needs to be done.

The only way to break the pressures on both mental health services and schools is to reinvest in early intervention services of the kind that local authorities and the NHS have been forced to cut over the last few years. But this time around there should be one major difference – there is a compelling case that services should be based largely inside schools.

There are strong arguments for why schools are best placed to provide mental health services. Schools see young people more than any other service, giving them a unique ability to get to hard-to-reach children and young people and build meaningful relationships with them over time. Studies have shown that children and young people largely prefer to see a counsellor in school rather than in an outside environment, and attendance rates for school-based services such as those provided by the charity Place2Be are often better than those for CAMHS. Young people have reported that for low-level conditions such as stress and anxiety, a clinical NHS setting can sometimes be daunting and off-putting.

There are already examples of innovative schools which combine mental health and wellbeing provision with a strong academic curriculum. For example, School 21 in East London dedicates 2.5 hours per week to wellbeing, creating opportunities for pastoral staff to identify problems as early as possible.

There is a huge opportunity for Nicky Morgan – as well as Labour’s shadow mental health minister Luciana Berger – to call for schools to be placed at the heart of a reconstructed early intervention infrastructure.

This will, though, require a huge cultural shift. Politicians, policymakers, commissioners and school leaders must be brave enough to make the leap in to reimagining schools as providers of health as well as education services.

Craig Thorley is a research fellow at IPPR, where he leads work on mental health. Follow him @craigjthorley