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    The government, in response to the Article 50 decision in the Supreme Court, has published its Brexit bill. Short, sweet and the to point; I like it.

    Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

    1Power to notify withdrawal from the EU
    (1)The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

    (2)This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.
    The remainers were hoping to turn this into a big fight over the terms of Brexit, but the government will stand firm; no amendments, no delay. Any conservatives who attempt to block it will find themselves the subject to a selection challenge for their seat, and in any case their opposition will be irrelevant because the PM probably has enough support between the DUP, UUP and Labour eurosceptics like Corbyn and Kate Hoey to offset any Tory remainer opposition.

    And if the Lords try to play silly buggers and arrogate to themselves a say in this process, a say which is completely undeserved and inappropriate, the PM might appoint hundreds of new peers to the Lords to force the bill through.

    Let the squealing commence! I can't wait to see the Remainer tears when they realise that winning the Miller case in the Supreme Court made no difference at all.
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    Tim Farron is such a douche. The government has given over five days of Commons business to debate this four line bill, a very generous allowance I should have thought. They claimed in respect of the Miller case that they were simply in favour of parliamentary sovereignty (even though parliament had not made any indication that it disagreed with the government's decision to trigger Art 50).

    Okay, so now they have what they wanted; parliament will enact permission for the government to trigger Article 50. And what does Farron say in response to the Brexit bill?

    He said: “Take back control was a mantra of the leave campaign, but this government’s extreme reluctance to involve parliament in this process has instead been an affront to parliamentary sovereignty and democracy.”
    In reality, whatever happens Farron will claim that democracy has been disrespected and undermined. By "parliamentary sovereignty", Farron means "whatever outcome I prefer". If parliament votes to approve this bill, parliament has spoken. A minority of whiners does not represent the will of parliament; the majority does. Their problem is that increasingly they are running out of figleafs to hide behind and will simply have to come out and say that no matter what, they will oppose Article 50 being triggered (which is a legitimate position, but they should just be honest about it instead of pretending this is some kind of democratic-legal process objection)
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    (Original post by AlexanderHam)
    but the government will stand firm; no amendments, no delay.

    The Attorney General truly is useless.

    How can you muck up a two sub-clause bill?

    Both sub-clauses are defectively drafted and the government is likely to face the considerable embarrassment of introducing its own amendments to almost entirely re-write the bill.

    Clause 1 (1)

    Read paragraphs 15-17 of Miller. If the government doesn't have the prerogative power (as the court found) to give notice under Article 50 (2) then it can't have power to decide to withdraw under Article 50 (1). That makes perfect sense. However, the question wasn't asked whether the only reason the government lacked the power to withdraw under Article 50 (1) was because it lacked the power to give notice under Article 50(2) or whether independently of Article 50 (2), the government lacked power under Article 50(1). It essentially wasn't a live issue.

    So what has the government done? The Bill authorises the government to give notice under Article 50 (2), but says nothing about authorising the government to decide to withdraw under Article 50 (1). That immediately makes what wasn't a live issue before, now very much a live issue.

    For goodness sake why? We know as a matter of law the government hasn't decided to withdraw from the EU, because those paragraphs of Miller say that it doesn't yet have the power to do so, so the government can't be maintaining a position that it decided to withdraw months ago. It just looks like sloppy drafting.

    If the government doesn't amend and the Bill passes, then there is immediately another opportunity for a lawsuit.

    Clause 1 (2)

    This is I think less of a problem. This states that Clause 1 (1) is to have effect despite the provisions of any enactment including the 1972 Act. But the government's lack of power to give notice doesn't arise from an enactment. It arises at common law. The time-honoured phrase used in these circumstances is "notwithstanding any enactment or rule of law to the contrary". Why not use it? I don't think any challenger would get very far with an argument that clause 1 (1) was ineffective to do "what it says on the tin" whether or not clause 1 (2) existed at all but if you are going to have clause 1 (2) then at least do it properly.
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    (Original post by AlexanderHam)
    Tim Farron is such a douche. The government has given over five days of Commons business to debate this four line bill, a very generous allowance I should have thought. They claimed in respect of the Miller case that they were simply in favour of parliamentary sovereignty (even though parliament had not made any indication that it disagreed with the government's decision to trigger Art 50).

    Okay, so now they have what they wanted; parliament will enact permission for the government to trigger Article 50. And what does Farron say in response to the Brexit bill?

    In reality, whatever happens Farron will claim that democracy has been disrespected and undermined. By "parliamentary sovereignty", Farron means "whatever outcome I prefer". If parliament votes to approve this bill, parliament has spoken. A minority of whiners does not represent the will of parliament; the majority does. Their problem is that increasingly they are running out of figleafs to hide behind and will simply have to come out and say that no matter what, they will oppose Article 50 being triggered (which is a legitimate position, but they should just be honest about it instead of pretending this is some kind of democratic-legal process objection)
    To be fair to Farron, he's just acting in his party's interest essentially. Lib Dem voters were overwhelmingly pro-Remain, and he knows he's probably got a much better chance of picking up more Remainers than Leavers. At the same time, it's almost certain that his MPs won't have significant impact on the vote. At the moment, they're too small a party to be too concerned about what the country as a whole thinks - they just need to focus on their strengths. When they're back to being a nationally competitive party, then they can start worrying about that.

    It's the Labour and Tory MPs planning to vote against who are being more irresponsible than Farron, in my opinion.
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    I said the ruling made Brexit more likely (as a remain voter), I'm beginning to think leftists are even more stupid than all the blue collar White conservatives they sneer at.
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    (Original post by AlexanderHam)
    Let the squealing commence! I can't wait to see the Remainer tears when they realise that winning the Miller case in the Supreme Court made no difference at all.
    It's more stupid for May to trying to subvert parliament. Instead of wasting all this time she could have just put it through parliament.
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    (Original post by ChaoticButterfly)
    It's more stupid for May to trying to subvert parliament. Instead of wasting all this time she could have just put it through parliament.
    How is it subverting parliament to do something parliament didn't even say it was opposed to? Parliament had every opportunity to stand up and say "no" if it disagreed. It didn't because there's no majority for doing so.

    You can't claim a minority position in parliament represents the will of parliament.
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    (Original post by nulli tertius)
    The Attorney General truly is useless.
    If the government doesn't have the prerogative power (as the court found) to give notice under Article 50 (2) then it can't have power to decide to withdraw under Article 50 (1). That makes perfect sense.
    It actually makes no sense whatsoever.

    The express terms of section 1 of this bill authorises the PM to give notice under Article 50. Your claims about the 'underlying' reason has no basis in law that I can see.

    The Bill authorises the government to give notice under Article 50 (2), but says nothing about authorising the government to decide to withdraw under Article 50 (1).
    The Miller case determined that the government lacks the power to give notice under Article 50(2). This bill provides parliamentary authorisation for such notice to be given. There are few exercises of statutory authority that are clearer in their intention or effect as this bill is.

    If the government doesn't amend and the Bill passes, then there is immediately another opportunity for a lawsuit.
    Lord Pannick disagrees with you. He says the bill is perfectly sufficient for the purposes of Miller. I'd say Lord Pannick is correct.
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    (Original post by AlexanderHam)




    Lord Pannick disagrees with you. He says the bill is perfectly sufficient for the purposes of Miller. I'd say Lord Pannick is correct.
    We shall see.

    Can you refer me to Pannick's opinion?

    Have you read Mark Elliott's useful commentary on Miller?

    https://publiclawforeveryone.com/tag/brexit/

    I think Carnworth's view is wrong and dangerous. As Marshall J said in the US case of Marbury v Madison it is the job of the courts to say what the law is. They can't abdicate that function just because a case is a matter of political controversy.

    I prefer Lord Reed's view to that of the majority. I think Elliott underplays the importance of what he says in the paragraph beginning "The only real novelty". I think that contains the seeds of destruction for our unwritten constitution and substantially for parliamentary sovereignty . For the first time in English law, there is a roadmap to entrenching constitutional provisions in priority to Acts of Parliament. Practically, if not legally, Parliament will be able to bind its successors. For 40 years we have considered that the EU legal order is unique and incapable of reproduction domestically because it involves an element of international treaty. The majority say that this is not so. Reed's view is the orthodox one here.

    The majority view gives a route forward for an entrenched British Bill of Rights. Okay, Parliament would be able legally to repeal that Bill of Rights but it will be politically impossible to do so. However, there is nothing to control what is entrenched and this could be used by a political party to protect its legislation from repeal when it leaves office. In most countries enacting entrenched constitutional legislation is hard, nowhere more so than the USA. The majority judgment provides a method whereby nothing more than a transitory Parliamentary majority could do so.




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