Something worth bearing in mind. The Supreme Court, last year, gave a judgment on a double Bill reference, on the UNCRC and ECLSG Bills.

It rejected a @scotgov argument that Holyrood could legislate with words clearly beyond competence, then ask the courts to "read it down". 🧵 In the judgment, Lord Reed placed great weight on the fact that the Scotland Act has an established set of mechanisms for "vetting" Bills for legislative competence, including the promoter's and the Presiding Officers' competence statements on introduction.

This is an important thread, not just for #indyref2 but also for the wider role of the UK Supreme Court in accepting and determining references on disputes about devolution and devolved competence.

Some additional thoughts of my own 🧵1/x

https://twitter.com/PeatWorrier/status/1541781726443323402

Normally, the UK Supreme Court operates as an appellate court. Parties appeal against decisions taken by lower courts, and they uphold or overturn them.

The devolution settlements slightly broaden this role, to allow both "bill references" and "devolution issue references". 2/x

Thread 🧵 on Schedule 5 of the Scotland Act 1998.

It is often claimed, wrongly, that "the constitution" is a reserved matter (i.e. something that only the UK Parliament can pass legislation about).

This has never been the case.

Even to try to do that would make no sense. (1/x) Why? Because then you'd have to define or describe the extent and limits of what the UK constitution is.

Why's that a problem? Because it isn't codified!

Such a situation would be fraught with ambiguities. What counts as constitutional and what doesn't? (2/x)

Today the Government introduced a bill to repeal the Fixed-term Parliaments Act. This bill differs from the draft bill published in December 2020 in several important respects.

Be warned, this is a mega🧵but for the geeks, hopefully a useful summary of where we are. The first most visible change is to the bill's title. It no longer refers to repealing the 2011 Act. This responds to an accessibility point raised by the @JointCtteeFTPA.

The Dissolution and Calling of Parliament Bill is more RONSEAL. It make laws about what it says on the tin.

Ratification of a Future Relationship Treaty by the UK [THREAD]

The UK Government cannot ratify a treaty with the EU unless and until it has complied with, or disapplied, Part 2 of the Constitutional Reform and Governance Act [1/x] The default rule is that the Government has to lay a copy of any treaty it reaches with an international organisation. It then has to give Parliament 21 joint sitting days to scrutinise the treaty.

That means both Commons and Lords must be sitting for each of those 21 days [2/x]

Both the Advocate General for Scotland and the Attorney General have argued in recent days, that section 19 of the Human Rights Act 1998 provides a precedent for the UK legislating contrary to its international obligations.

[THREAD] [1/15] The Government's argument seems to be that this illustrates both how:

(a) domestic law and international law sometimes come into conflict; and
(b) this sometimes justifies Ministers acting contrary to international law and/or Parliament legislating contrary to it. [2/15]

The amendment referred to here by @tnewtondunn has been published. You can find it on today's amendment paper here. publications.parliament.uk/pa/bills/cbill…

There follows a short thread explaining what this amendment does and what it does not do.

https://twitter.com/tnewtondunn/status/1304103835674304512

The default rule about "commencement regulations" is that they are made by a Minister without any form of Parliamentary approval. By default, that is what would happen with clauses 42, 43 and 45 (the ones that break, and enable the Government further to break, international law).

I got something wrong in a couple of Tweets about 15 minutes ago, but useful to explain what I got wrong and why.

Latest press briefing is that people will soon be allowed to exercise outside with one person from another household (if socially distanced). (1) Contrary to what I originally said, it's not clear that you could do this at the moment. Why?

(a) you can be outside the house for exercise

and

(b) only some gatherings of more than 2 people are prohibited

But from that it doesn't follow two people can exercise together. (2)

Sunset clauses are an important safeguard against the use of unusually broad or general executive powers. They also take different forms: (a) time limiting provisions in an Act (b) time limiting the power to make regulations or (c) time limiting the effect of regulations. (1/8) The purpose is to ensure e.g. that emergency powers are not used beyond what is needed to deal with genuine conditions of emergency. In the UK it gives Parliament a safety valve in case it thinks an emergency no longer pertains or Gov't measures are no long appropriate. (2/8)

Since you didn't ask.

Section 29(2)(d) of the Scotland Act 1998 says something is outwith competence if it is "incompatible with EU law".

Section 126(9) of the 1998 Act defines "EU law" but with reference to "EU Treaties".

The 1998 Act doesn't define "EU Treaties". (1/x)

https://twitter.com/woodstockjag/status/1225456462056607744

So off you go to Schedule 1 of the Interpretation Act 1978.

It does define "EU Treaties". But it just says "what EU Treaties means in the European Communities Act 1972".

(2/x)

Here is the EU (Withdrawal Agreement) Bill 2019-20.

publications.parliament.uk/pa/bills/cbill…

First impressions.

Three clauses removed.

Clause 30 on MPs' veto over extension? Gone.
Clause 31 on Parliament's role re future relationship? Gone.
Clause 34 and Schedule 4 on workers' rights? Gone. 5 new clauses:

Clause 30 on Joint Committee dispute resolution reporting
Clause 33 banning Ministers from agreeing to an extension
Clause 35 banning the use of written procedure in the Joint Committee
Clause 36 repealing spent enactments
Clause 37 changing stuff re Dubs children

In before the #Dissolution lock, the Lords Constitution Committee have published their interim report into the European Union (Withdrawal Agreement) Bill. Click the link to have a gander. parliament.uk/business/commi… Firstly, it provides some useful context. Although we don't know for certain whether/when this Bill (or something similar to it) will be presented in the new Parliament it is useful to assess the WAB "as is". It will inform the basis for scrutinising any departure "with a deal".

A thread on proclamations and elections...

When an early GE is triggered under the Fixed-term Parliaments Act, the next step is the Queen sets polling day "on the recommendation of the Prime Minister" as required by section 2(7) of that Act. (1/8) legislation.gov.uk/ukpga/2011/14/… As an example of this, see this proclamation made on 25 April 2017. This was only made 6 days after the House of Commons voted in favour of an early general election, but could have been made immediately thereafter (2/8) privycouncil.independent.gov.uk/wp-content/upl…

A General Election on Monday 9 December would require dissolution on Friday 1 November (unless election period or dissolution also altered by legislation) meaning a Bill would need Royal Assent by Thursday 31 October.

Such a Bill also cannot be debated until Tuesday 29 October. One presumes the core disagreement about the date (9th vs 12th) is therefore actually about dissolution. GE on 12th would give Parliament 5 current sitting/8 calendar days to pass the WAB (assuming extension and timetable agreed Monday) whereas 9th only Tuesday/Wednesday left.

Here is a handy thread to keep all of the published @commonslibrary Insights on the Withdrawal Agreement Bill in one place. I will add more as they are published.

WAB Insight 1: Ratification of the Withdrawal Agreement

commonslibrary.parliament.uk/brexit/legisla… WAB Insight 2: Parliament’s role in the future UK-EU relationship

@commonslibrary

commonslibrary.parliament.uk/brexit/legisla…

Key things I’ll be interested in when WAB is published later today:

(a) how does it propose to meet/replace the requirements for ratifying the WA

(b) what role does it give Parliament in the next phase of the negotiations

(c) how is UK negotiating mandate constrained

(1/x) (d) how is the effect of the ECA preserved to deliver the transition period

(e) how does it treat developments in EU law before it is “retained” as UK law post transition

(f) what status is given to the WA in domestic law (the Article 4 question)

(2/x)

Good morning. Today Parliament sits for its first Saturday sitting since the Falklands War in April 1982. MPs will debate whether to give the PM the “green light” for his renegotiated Brexit deal. The @commonslibrary explains here what’s going on commonslibrary.parliament.uk/parliament-and… (1/x) However, we don’t know yet whether MPs will have a straight “yes or no” vote on the Prime Minister’s deal. This is because we can talk about “approval” for his deal in two distinct senses.

The first sense is “legal”: there are two laws that say the PM needs MPs’ approval. (2/x)

There are, as far as I can see, five plausible outcomes following Saturday's proceedings in Parliament.

Scenario (a) the Commons simply backs the Government's deal

This involves MPs first rejecting the Letwin amendment, then passing the original motion unamended. (1/x) It is then up to the Government to decide how quickly to bring in the Withdrawal Agreement Bill. They might try to do it very quickly (to avoid in practice needing to ask for a "technical" extension) or they might ask for one and do things a bit more slowly (2/x)

The chronology of votes tomorrow is very important.

Selected amendments are voted on first. If a selected amendment passes, the Commons then votes on a main motion *as amended* rather than the original motion. (1/x) If a majority of MPs vote for, say, the Letwin amendment, it does not follow that MPs would then vote *the same way* on the main motion *as amended* immediately thereafter. (2/x)

Quite a few people have asked me about the interaction between prorogation and the Fixed-term Parliament’s Act 2011. This explanation will be quite fiddly but it’s clearly something at the forefront of a lot of people’s thoughts so I’ll be as clear as I can. (1/x) Firstly, the authority under which a Commission takes steps to prorogue Parliament is an Order in Council made by Her Majesty. That Order has been made. Even if the instructions are “in the future” the Commission will, by default, take steps to implement it. (2/x)

Today is an important one to remind people that:

(1) The UK’s membership of the EU is defined by EU law under its Treaties.

(2) The repeal of the European Communities Act 1972 has zero bearing on membership. It only affects whether the UK is domestically compliant with EU law. Oh, and (3) commencement regulations, which don’t require MPs’ approval, can be made at practically any time. In the case of the 2018 Act they have zero bearing on whether and when the UK leaves the EU. Govt could have made them in July 2018 or October 2019. No legal difference.