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Jo Maugham QC @JolyonMaugham
, 15 tweets, 3 min read Read on Twitter
I don't think it will succeed, but this case does have its points of interest. /1…
The Miller case established that Parliament had to authorise the triggering of Article 50. But it didn't really focus on whether Parliament needed to authorise the *decision* to leave or the *notification* of a decision. /2
But if you look at Article 50, it is the decision that has to be made in accordance with our constitutional requirements. The notification is just an administrative act - it could be by way of tweet. /3
Parliament was asked to and duly passed an Act authorising Theresa May to notify a decision to leave the EU. But what decision? /4
Miller established that the Referendum result wasn't the decision: it just advised what the decision could be. So where is the decision. /5
Lots of Freedom of Information Act requests were made of Government. Where is the decision, they asked? The replies said, essentially: "look at all this stuff that happened, it must be there somewhere". /6
But that's not terribly persuasive.

Most lawyers will tell you "Well, a court would say that the Act Parliament passed to authorise the notification also implicitly made the decision." And that, legally, is a powerful contention. /7
But here's the point of interest: will the Government take that point? Will it say the Decision is in the Act? I don't think that it will. /8
And the reason why I don't think it will is that, if Government admits that Parliament made the decision to leave it also has to admit that 'the People' didn't make the decision. /9
What 'the People' decided (it will be said) has a political legitimacy that Parliament cannot undo. That's why we hear so often the phrase 'the will of the people'. /10
But if the Government argues that the decision to leave was in the Act, it will be admitting that the decision to leave was made by Parliament and, because it was made by Parliament, it can be unmade by Parliament. /11
So it may choose to fight this case with, for political reasons, one hand tied behind its back. And that will make this case much more legally difficult for the Government. /12
(There is precedent for this. Many lawyers (not me) thought Miller would lose because the Government would say A50 was revocable, so no rights were lost. But this argument was politically unpalatable to Government so it didn't take it's best legal point and it lost.) /13
The same could happen in this case. That would make things legally more interesting. I still think the case loses - imo, we are too far down the road for any court to say A50 has not been triggered. But we could learn interesting stuff along the way. /14
And it would enhance the prospect of us Remaining, imo, if Government was forced to admit Parliament made the decision to leave.

Anyway, if you're interested, there is more on the point from me here.… /ENDS
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