Big matters today – are the British people still sovereign?

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Offline the leveller

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Big matters today – are the British people still sovereign?
By | Published: January 11, 2011
           Today we will debate Parliamentary sovereignty. In truth, it should be called popular sovereignty. If Parliament can make and unmake laws, raise taxes and spend them without interference from the EU or judges, then the people are sovereign, because they can dismiss the Parliament in elections and influence it between elections through the pressure of public opinion.
         If the EU and judges can now make law against Parliament’s wishes, or by ignoring Parliament, then the people have lost that control they should exercise through the pressure of public opinion and the votes of elected representatives.
           At the heart of the arguments today in Parliament will be just that. The government says its Bill will reassert or confirm Parliamentary sovereignty, at least with respect to the EU. It will confirm that EU law only applies here because Parliament enacted the 1972 European Communities Act, giving the EU what powers it enjoys.
               Some say it is now more complex than that. If, as some say, judges can now change or overturn laws through common law judgements and cases, then judges too can work with EU law and Treaties regardless of the views of Parliament.
                 The government and the MPs who are tabling amendments say they both want the same thing – a convincing reassertion of Parliamentary sovereignty. I will vote for the strongest formulations on offer, as I do believe we need to strengthen democratic accountability here at home.
                  The seventeenth century constitutional crisis sought to settle our constitution decisively in favour of Parliament making the law and answering for its works to electors. Judges were to interpret the law for individual cases, and MPs rightly  agreed to stay out of those. Some fear that the world of creeping EU jurisdiction is different. It can lead to more decisions being taken by unelected officials, and to a sense of frustration about who is in charge as multiple sopurces of power and law making overlap and collide.
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Posted January 11, 2011 at 7:10 am | Permalink
If the arch-federalist Lib Dems are going to be voting for this Bill it tells you all you need to know about the content of it, you don’t even have to read it.
No chance of a bit of realpolitik and ganging up with Labour to ambush this useless piece of legislation? After all, we had MP’s voting for the tuition fee Bill even though it wasn’t the best option but because if it failed the alternative was worse. Seems similar to what is on offer here. This Bill will be the final nail in the pro-British coffin, a sop that politicians can say they gave us as more and more power drains away to the Central Committee in Brussels.
Far better to have it out now.
Instead the nays will be split and the Bill will sail through.
Reply: I hear that Lbaour will not support amendments to strengthen the Bill.
Posted January 11, 2011 at 7:13 am | Permalink
As I am sure you know this is just the latest spin attempt by Cameron. He has no intention of doing anything substantive. MPs from Heath onwards have given away parliamentary sovereignty against the wishes of the people, while lying to them throughout as to their true intentions. The lack of a proper UK constitution and the UK voting system has enabled this to pass with the voters powerless to stop it. The leaders cooperation in this fraud against the people has be bought by the EU for as little as the price or a few overpaid and pensioned EU jobs. The expenses scandal has shown us just how cheaply many MPs could be bought and even now after all the party promises on Lisbon they will do nothing but a little more pretence and PR on the issue.
Andrew Johnson
Posted January 11, 2011 at 5:16 pm | Permalink
Not sure what you mean by, “lack of a proper UK constitution”. There certainly is a constitution, and sitting at the heart of it is this fact – the UK parliament is sovereign. This is the reason why no government needs to be bound by the legislation of a previous government, because our constitution says Parliament (with a majority of 1) can make or unmake any law.
Our neighbour, Ireland, has an all encompassing written constitution designed to protect its sovereignty and the rights of its citizens. That seems to have been successfully bypassed by the existing government, so Irish citizens have been denied a referendum or a general election on the truly punitive EU loan conditions which will affect them for years to come.
Steve Cox
Posted January 11, 2011 at 7:25 am | Permalink
For many years I have felt that power is slipping away from the people. Government and its various tentacles mostly ignores individuals, unless they are rich, powerful or well-connected. Many if not most of us sit secure in our delusion that the ‘system is on our side’. If we ever feel that a grievous injustice has been done, then all we need to do is to write to our MP. or perhaps the national newspapers, and they will mount their white steeds and charge to our rescue. Sadly, when you get into the position where you need some assistance from superior powers, they often ignore you. I first learnt this, to my great and everlasting disappointment, over the IR35 issue back in 1999 and 2000. This move, which had been carefully hidden by Gordon Brown in the footnotes of his 1999 budget, was specifically aimed at penalising anybody working as a freelancer through their own LLC. By definition, you did not belong to a Trade Union or have a representative body, you worked alone and decided what risk you wished to take in return for what rewards. It was a good system and it worked for people. When IR35 became common knowledge, of course, many contractors wished to complain to their MP’s, the Treasury, or the Inland Revenue. As so often happens, though, (description removed-ed) Dawn Primarolo, who was at that time Paymaster General (and if that appointment didn’t tell you enough about the true ethics of New Labour then nothing would!), had decided that no individual representations concerning IR35 would be entertained. Perhaps you can imagine how lonely people felt at that stage. The game had been rigged against us, the goalposts moved beyond our reach, and the referee was our worst enemy. That was when I realised how fallacious many of our feelings wrt our democratic protections really are. Since then it has continued to get worse and worse, as we all know, with the power of the individual constantly ebbing. Don’t take my word for it, Richard North a few days ago expressed the current situation (far more eloquently than I ever could) in this article:
Mark Wadsworth
Posted January 11, 2011 at 7:34 am | Permalink
Nope. Next question.
Posted January 11, 2011 at 7:57 am | Permalink
It has always been the role of the judges to interpret the meaning of enactments and statutes. When a judge makes such a decision, the doctrine of precedent requires those decisions to be followed. Both Parliament and judges play an equal role in the development of the law.
Mike Stallard
Posted January 11, 2011 at 12:21 pm | Permalink
Yes, but which law? And who makes that law?
Andrew Johnson
Posted January 11, 2011 at 5:28 pm | Permalink
This is not the case. Parliament can make, unmake, or amend any law, thus rendering precedents obsolete. The judiciary can only interpret the law when it is unclear, (a failure by commons and Lords, hence, appeals and amendments of the law) otherwise, they are constitutionally obliged to enact the laws parliament have made – (hence the handwringing of judges when they have no alternative but to enact the law, even when it is an an ass).
Matthew Dear
Posted January 13, 2011 at 9:08 am | Permalink
Indeed – Parliament can pass a statute explicitly or implicitly reversing or superceding any “judge-made” law, including House of Lords/Supreme Court decisions. I would contend (and did so once in an essay) that it could also do so in respect of ECHR decisions and any other EU Law – even where “directly applicable.” It has just never had the cojones to do so.
Posted January 13, 2011 at 4:10 pm | Permalink
The judiciary would never recognise nor enforce an Act that abolished elections. There are also doubts it would uphold any attempt to oust judicial review. Parliamentary sovereignty, unlike virginity, is not absolute.
Peter van Leeuwen
Posted January 11, 2011 at 7:59 am | Permalink
Is this going to be a better protection (of national sovereignty) than e.g. the German one (constitutional court protecting national sovereignty)? Imagine a future treaty change:
– In Germany the court in Karlsruhe will give an intelligent, reasoned, detailed verdict (on usually a complex matter)
– In the UK the decision is then given by referendum to the “population”, in practice this means it will be given to the (unelected) media moguls (Daily Express, The Sun, Daily Telegraph).
Paul Greenwood
Posted January 12, 2011 at 10:17 am | Permalink
that is what we call democracy !
Posted January 11, 2011 at 8:20 am | Permalink
This is vital, John, we brits know that our parliament has no power – and the loss of power, the massive cost and the cost of all the regulations is what makes thinking people want to leave the EU.
alan jutson
Posted January 11, 2011 at 8:48 am | Permalink
Good to hear your thoughts and intended actions.
I wonder if the whips and lobby fodder will as usual follow like sheep, the instructions of their leaders, and once again foil those MP’s who seek to uphold their ability to run the Country without EU involvement in everything
Posted January 11, 2011 at 8:54 am | Permalink
As I understand it, parliament is at present not sovereign, but only because it has decided not to be. Following Lisbon, it would appear that the only way to remedy this is repeal of the 1972 Act, and its replacement with something more suitable. That would be the ideal solution.
I followed the debate on the current legislation on offer from the government, and as feared it looks awful. Mr Hague should be ashamed. If you can’t amend it to have serious force, then throw it out! Wishy Washy PR stunts are no substitute for firm, principled government.
Stuart Fairney
Posted January 11, 2011 at 9:16 am | Permalink
The people are not sovereign as you well know. We have the concept of the crown in parliament and so have replaced the divine right of Kings with something akin to the rule of the thirty over ancient Athens.
Mike Stallard
Posted January 11, 2011 at 12:28 pm | Permalink
– without Socrates, Plato and Aristotle…….
Posted January 11, 2011 at 10:23 am | Permalink
I take it that clause 18 is the biggy today? Having read the explanatory notes to the Bill, am I correct in thinking that if the European Communities Act 1972, is repealed; then we will have resigned from the EU? Regardless of any other UK Act of Parliament concerning the EU.
If so, what do you think are the chances for Mr Hollobone’s private members Bill (Bill 42) – repealing the ECA 1972 Act – getting passed?
Reply: Repeal of the 1972 Act takes us out of the EU. There is no chance of such a measure passing this Parliament.
Posted January 11, 2011 at 3:21 pm | Permalink
UKIP will repeal the European Communities Act 1972 which will mean we are no longer a member of the EU. Why don’t our present coalition do the same to save us zillions of money?
Posted January 11, 2011 at 10:43 am | Permalink
I would like to see us regain control of sins of ommision – rather than the law as it stands which only substantially legislates for sins of commission.
By that I mean the British constitution cannot prosecute a person who watches a baby drown in a puddle as it can prosecute a person who drowns a baby. Which all sounds rather silly but has a point.
The deeper reason why we have so many problems with EU law is that it deals with Human Rights – but not responsibility. The person who watches a child drown in a puddle is not violating any rights, but clearly there is something missing in a legal system that ignores responsibility of the individual to society. So on one hand we don’t want to bring responsibility laws in as they are seen as draconian, but on the other hand we then have no teeth to drive off EU laws.
Ironically the UK constitution should allow this because we are all subjects of the Monarch rather than citizens of the state. Having dealt with a lot of legal banking contracts in the UK and US I always remember that in the UK the Monarch owns everything (legally speaking) and hence can override any thing “illegal” in the contract. Whilst in the US the contract is king. There is a clear difference between UK and US consumer law as a result of this.
Which brings me back to the point about the UK – that when we voted for the EU we all signed a cross on the ballot paper. The cross is of course a proxy for our signature – and as such a ballot paper is a contract and election law is based on the cross being our signature. Which brings us back to the EU, than when we signed to join the EU we did so as subjects not as citizens – and as such the Monarch has complete power over any contract we sign. The point about contracts also holds true for Prime Ministers signing treaties. Hence the UK constitution is clear that the UK people cannot sign away their sovereignty, and that any any time, just like consumer law, Parliament can repeal any aspect of any contract as long as the Monarch signs off on it.
Posted January 13, 2011 at 4:01 pm | Permalink
You may be surprised to learn that you would be committing an offence if you failed to provide assistance to a drowning child in France and Germany. However, the common law in England & Wales imposes no such obligation unless you are the child’s parent.
Richard Calhoun
Posted January 11, 2011 at 11:00 am | Permalink
It is very apparent from reading the press that there is a lot of unease with regard to today’s bill amongst conservative MP’s.
It is their government that is putting this bill through and if they are not happy with it they should vote against it and force the government to put forward a bill they can vote for.
The electorate are too often let down by MP’s been unwilling in the final analysis to vote against their party, despite being against critical parts of it.
It should not be so.
Freeborn John
Posted January 11, 2011 at 11:08 am | Permalink
I don’t think parliamentary sovereignty is compatible with the sovereignty of the people given the rise of international organisations. Either institutions are sovereign or the people are sovereign, and we have seen countless examples where British governments of all parties have been ready to make deals within the clubby atmosphere of EU Councils that sell out the long-term sovereignty of the people in exchange for short-term deals that suit the government of the day. Only a constitutional lock (not William’s Hague’s regular Bill) can act as a law on the government to prevent them indulging in iterative bargaining with EU colleagues at the expense of the long-term survival of British democracy. That does mean some level of judicial review over the decisions of government and parliament (which is de-facto under the command of the command of the prime minister who commands the majority in parliament). Therefore i cannot agree with Bill Cash or those who those who say parliament should be supreme and not subject to judicial review in these matters. The experience in 27 European countries has been that only in Ireland, where alone there is a constitution based on the Sovereignty of the People with the Irish Supreme Court constitutionally empowered to overrule the Oireachtas when it wants to transfer powers to Brussels without the express consent of the people in a referendum, has there been any effective check whatsoever of the one-way leach of power to Brussels.
William Hague’s Bill is a waste of time in a country with no formal dissection between regular and constitutional law. There is nothing to stop a future government repealing it on their first day in office and ratifying a new EU treaty the very next day without a referendum. The Bill itself should have been accompanied by a written constitution, voted on by the British people, which would require any repeal or change to William Hague’s Bill to be approved by referendum too. That would be a real referendum lock. Otherwise this Bill will be as ineffective as Hague’s earlier promises “not to let matter’s rest” or “not to seek immediate confrontation with Brussels”, nothing but Dog Whistle legislation that hints at action which he has no intention of delivering upon.

“The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they who have it cannot pass it over to others”. John Locke.
Posted January 11, 2011 at 11:31 am | Permalink
“If, as some say, judges can now change or overturn laws through common law judgements and cases, then judges too can work with EU law and Treaties regardless of the views of Parliament.”
Except they can’t change or overturn laws. They can merely clarify or fill in the gaps by applying laws to circumstances which may not have been considered when the laws were drafted. The premise of the “some who say” is entirely misplaced.
Mike Stallard
Posted January 11, 2011 at 12:26 pm | Permalink
This is getting scary.
You are right – go for it!
It is always the same an arcane subject comes up and people disregard it.
Extradition to America; extradition to the EU; (yawn); lack of jury trial in family courts; innocence presumed; (snore); closure of local courts; anti terrorist legislation badly framed; disregard of the JPs (zzzzzzz).
Then, one by one, they come back to bite you.
And listen to the howls of protest!
Posted January 11, 2011 at 12:31 pm | Permalink
I do wonder whether Cameron, Hague and Osborne are pursuing their current EU approach with half an eye on the idea that the government may fail to rein in the deficit sufficiently, or be faced with a further banking crisis, requiring an external bailout. £2.5bn of trade deals with China isn’t going to cut it (still less the $10m green energy deal the Scots cut that the BBC trumpeted as “major”). Of course, if we get a bailout partly from the EU, that will entail giving away many more powers as the quid pro quo – including perhaps giving away the Quid itself along with the right to set our own taxes and spending.
Posted January 11, 2011 at 12:56 pm | Permalink
In relation to the proposed ‘Portuguese bailout’ you are quoted as saying this John:
““The UK wisely kept out of the euro. Our own public finances are still very stretched and we cannot afford to be dragged into more bail-outs of our neighbours […] I like my neighbours and enjoy sharing a meal or drink with them. I am not ready to share a bank account.” ”
Will you please comment on your thought about applying the same to our neighbours within the UK.
English Pensioner
Posted January 11, 2011 at 1:15 pm | Permalink
I will be very surprised if what happens in Parliament today will change anything. No senior politicians have any desire for change, the EU having a couple of big advantages from their point of view:
Firstly, if something goes wrong, with a bit of luck they can blame it on the EU – “It wasn’t me guv, I only did what I was told”
and Secondly, if they don’t blot their EU copybooks or upset the PM, in due course the will get a nice high paid, tax free, sinecure of a job thinking up more ridiculous Rules, Regulations and Restrictions (Europe’s “Three R’s”).
Posted January 11, 2011 at 1:44 pm | Permalink
“then the people are sovereign, because they can dismiss the Parliament in elections and influence it between elections through the pressure of public opinion.”
Huh! We can dismiss the parliament in elections. Then the Party gives us another approved list of Party aparachniks to choose from. Democracy? I think not!
Hailsham has been proven right. The Party is the problem.
Posted January 11, 2011 at 1:56 pm | Permalink
It would appear that the British Government is unwilling to protect its citizens from the EU grabbing even more power for itself and its sham ” parliament “.
One can only hope that the German Constitutional Court takes its job and duties more seriously :
“After the realisation of the principle of the sovereignty of the people in Europe, only the peoples of the Member States can dispose of their respective constituent powers and of the sovereignty of the state. Without the expressly declared will of the peoples, the elected bodies are not competent to create a new subject of legitimisation, or to delegitimise the existing ones, in the constitutional areas of their states.”
(Par. 347, Lisbon treaty verdict 2009)
Norman Dee

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