The now-enacted will of (some of) the people

[ml1dch]

41 minutes ago, blandy said:

She was delaying until right before 29 March, but there’s a crack in that both the end date may drift and no deal may get eliminated. 

With the sole exception of a new Government with the desire to rescind A50, "no deal" isn't eliminated.

Parliament can wave as many vague platitudes about "no deal being taken off the table" as it wants. As per that tweet from Letwin that snowy quoted, they are being played for the fools that they are.

[snowychap]

Going back to the subject of the use of SIs, Henry VIII powers and so forth in Brexit-related legislation that was brought up as a concern a couple of years ago (and repeated as such recently), here is a (long) blog from Mark Elliott about the recent Healthcare Bill and its wider (worrying) implications:

Quote

The Healthcare Bill: A case study in the implications (and dangers) of legislating for Brexit

The House of Lords Constitution Committee recently issued a report on the Healthcare (International Arrangements) Bill. The Bill amounts to an excellent, if alarming, case study on constitutional implications of legislating for a blind Brexit — blind in the sense that it remains unclear whether the UK will leave the EU on 29 March 2019 or at some later date or at all; unclear whether, if the UK does leave, it will leave on agreed terms or with no deal; and unclear, if it does leave on agreed terms, what those terms will actually be.

...

Delegated powers

Legislating behind such a veil of ignorance makes inevitable the conferral of extensive delegated powers, to be exercised expeditiously when (if) the fog begins to clear. This point is clearly illustrated by the Healthcare Bill, which in turn is emblematic of the general approach — also exemplified by the Agriculture Bill — that is being taken as legislation is enacted in anticipation of Brexit. The Healthcare Bill runs only to handful of clauses, the first two being key. Clause 1 empowers the Secretary of State to ‘make payments, and arrange for payments to be made, in respect of the cost of healthcare provided outside the United Kingdom’. Meanwhile, clause 2 authorises the Secretary of State to make regulations in relation to the exercise of the power granted by clause 1, for and in connection with the provision of healthcare outside the United Kingdom, and for the purpose of giving effect to healthcare agreements.

As the Delegated Powers and Regulatory Reform Committee (DPRRC) puts it in its first report on this Bill (a second has now been published), ‘Clause 2 has a breath-taking scope. Indeed, the scope of the regulations [capable of being made under clause 2] could hardly be wider.’ The Lords Constitution Committee, meanwhile, observes that:

The powers in the Bill are not limited in the amount of payments that might be made, the countries to which payments might be made or the types of healthcare that might be funded. Regulations may confer functions on, or delegate functions to, anyone anywhere, and may amend or repeal any Act of Parliament for the purposes of conferring functions on people or giving effect to a healthcare agreement.

The Constitution Committee goes on to consider the Government’s justification for these powers, as set out in its Delegated Powers Memorandum on the Healthcare Bill. In that Memorandum, the Government asserts that the powers are

necessary to enable the Secretary of State to respond appropriately after EU exit. The powers enable the Secretary of State to make provision to fund or for and in connection with the provision of healthcare outside the UK, pending or, in addition to, new reciprocal healthcare agreements being put in place should this be desirable as part of future Government reciprocal healthcare policy. While the powers in the Bill are broad the subject matter to which they relate is narrow; they can only be used to arrange for provision of and payments relating to healthcare access abroad and to give effect to healthcare agreements. This remit is contained.

However, as the Constitution Committee observes, although the ‘subject matter of the Bill may be narrow’, ‘the application of its provisions is not’. In particular, the Committee points out that the Bill ‘goes beyond providing the powers necessary to enable the Government to respond to the effect of Brexit on reciprocal healthcare arrangements: it allows for the creation of new policy relating to healthcare agreements with countries outside of the EU’. Nor is this Bill framed as a temporary, stop-gap measure that is intended to tide things over while uncertainty prevails: thus the delegated powers granted by the Bill are not, in contrast to those conferred by the European Union (Withdrawal) Act 2018 (EUWA) limited by any sunset clause. The Constitution Committee concludes this part of its report with the following recommendation, the significance of which extends beyond the Healthcare Bill itself:

While the exceptional circumstances of the UK’s departure from the European Union might justify legislation containing broader powers than would otherwise be constitutionally acceptable, this does not extend to giving effect to new policy unrelated to Brexit. The Bill should be limited to the making of arrangements for future reciprocal healthcare arrangements with countries that participate in the existing European Health Insurance Card scheme. We also recommend that the broad powers in the Bill are subject to a sunset clause, so that Parliament can scrutinise the detail of the policy in future primary legislation.

Amending retained EU law

Among the extensive powers conferred by the Healthcare Bill are Henry VIII powers that can be used to amend, repeal or revoke primary legislation. At the same time, such powers can be used to amend, repeal or revoke retained EU law. However, while the affirmative procedure must be used in respect of regulations that bite upon primary legislation, only the negative procedure — and thus a significantly lower level of parliamentary scrutiny — is applicable to regulations that bite upon retained EU law.

This scheme does not sit comfortably with that which is found in the EUWA. In particular, that Act distinguishes between ‘retained direct principal EU legislation’ and ‘retained direct minor EU legislation’. As the Constitution Committee explains in its report, ‘One of the purposes of drawing this distinction was to make it possible for subsequent Acts of Parliament’ — such as the present Bill — ‘to afford greater protection to retained direct principal legislation, such as by requiring delegated powers that amend it to be subject to the affirmative procedure’. Given this groundwork that was laid only last year in the EUWA, it is disappointing to find the Government introducing Bills that make no reference to the distinction between principal and minor retained EU legislation. The Committee points out that the same issue arose in respect of the Trade Bill, in which context the Government accepted the Committee’s criticism. Against that background, the Committee recommends that the Healthcare Bill ‘be amended to reflect the distinction drawn in the European Union (Withdrawal) Act 2018 between principal and minor retained direct EU legislation’, with the affirmative procedure applicable to regulations that amend, repeal or revoke retained principal EU legislation.

The Committee also recommends that ‘all future bills that provide for the amendment or repeal of retained EU law include the distinction between principal and minor retained direct EU legislation’. More generally, the Committee identifies a broader concern — namely, that ‘this Bill, as with other Brexit-related bills, provides for elements of retained EU law to be amended by new powers which are not subject to the scrutiny safeguards set out in the European Union (Withdrawal) Act 2018, the operation of which were the result of careful and detailed consideration’. It concludes that: ‘The House may wish to consider whether the powers to amend retained EU law in this Bill should be subject to the same scrutiny procedures as those in the European Union (Withdrawal) Act.’

...

The Sewel convention

The Healthcare Bill also implicates a matter relating to the territorial constitution and, in doing so, highlights an issue that is affecting other Brexit-related UK legislation too.

...

Concluding remarks

Viewing the territorial constitution—or any aspect of the constitution—exclusively through the prism of Brexit is liable to give a misleading, or at least a partial, impression. That is so not least because of the extraordinarily unusual set of circumstances that Brexit represents, and the unique pressures that it therefore brings to bear on the UK’s constitutional arrangements. At the same time, however, it would be mistaken to presuppose that the sort of constitutional issues highlighted by the Healthcare Bill are hermetically confined to the context of the UK’s departure from the EU. Such a Brexit-exceptionalist analysis would risk underestimating the potential longer term significance of the constitutional matters on which exit from the EU shines such a penetrating light.

The accretion of executive, at the expense of parliamentary, law-making power and the potential fragility of the territorial constitution in the face of a high-handed approach by UK institutions are ubiquitous issues that transcend the particular context of Brexit. It would thus be recklessly complacent to assume that the constitutional impact of legislation such as the Healthcare Bill will be confined to the Brexit context in which it is being enacted. On the contrary, the risk arises that such Brexit-related legislation will be relied upon by future governments as precedent for sweeping executive powers, while the UK Government’s insensitivity to the territorial constitutional settlement and its correspondingly imperious approach to intergovernmental relations will likely reverberate for a considerable time to come. None of this, of course, is to suggest that a single piece of legislation such as the Healthcare Bill is capable of precipitating a constitutional crisis. Nor is it to suggest that such a crisis necessarily lies in store thanks to the constitutional difficulties created and underlined by Brexit. But the Healthcare Bill—along with other Brexit-related legislation—does serve to illuminate a set of underlying issues concerning the balance of powers under the UK constitution. And while those issues self-evidently long predate Brexit, it is very likely that our understanding of them in the future will be informed, at least to some extent, both by the Brexit process generally and by the legislation that it has precipitated.

I've cut out some of the content (mainly related to the Sewel Convention stuff) but it's worth a read of all of it.

'Taking back control', eh?

Edited February 27, 2019 by snowychap
Spelling

[blandy]

3 hours ago, ml1dch said:

With the sole exception of a new Government with the desire to rescind A50, "no deal" isn't eliminated.

I know. I said it may be (i.e. in the future). Once/if parliament votes against no deal as an acceptable, to them, option obviously that doesn't mean it is impossible - it would still occur as a default no one does anything event, either end March, or end some other down the road date if there's an extension. But once/if parliament says "No" we will not accept no deal as an acceptable Brexit, and if they also do not accept May's mess, which has already been hoofed as an acceptable Brexit then the next thing will be a different Brexit to those 2 options - either, logically,  a softer one that needs no backstop, or no Brexit at all.

[snowychap]

On 25/02/2019 at 07:12, chrisp65 said:

looks like I missed a great night

Hilarious.

[HanoiVillan]

16 hours ago, blandy said:

I know. I said it may be (i.e. in the future). Once/if parliament votes against no deal as an acceptable, to them, option obviously that doesn't mean it is impossible - it would still occur as a default no one does anything event, either end March, or end some other down the road date if there's an extension. But once/if parliament says "No" we will not accept no deal as an acceptable Brexit, and if they also do not accept May's mess, which has already been hoofed as an acceptable Brexit then the next thing will be a different Brexit to those 2 options - either, logically,  a softer one that needs no backstop, or no Brexit at all.

Both of those eventualities require actions from May that she seems currently unlikely to take: adopting Labour's WA in the first instance, or revoking Article 50 in the second. 

It's not that we can be sure that one of these things won't happen - they're certainly not impossible - but they don't look likely. I can't see how a Tory PM can do either without tearing the party in half. 

Edited February 28, 2019 by HanoiVillan

[blandy]

2 hours ago, HanoiVillan said:

Both of those eventualities require actions from May that she seems currently unlikely to take: adopting Labour's WA in the first instance, or revoking Article 50 in the second. 

It's not that we can be sure that one of these things won't happen - they're certainly not impossible - but they don't look likely. I can't see how a Tory PM can do either without tearing the party in half. 

Yes. I agree. They won’t adopt the labour version, which is just another unicorn anyway. But I’m nigh on certain May is going to get overcome, either by being bypassed or by being hoofed. Maybe I’m letting a bit of wishful thinking get in there, but she’s been starkly exposed as beyond terrible. She’s only of use to them if she’s part of the solution, but they all know she’s part of the problem.

[ml1dch]

45 minutes ago, blandy said:

But I’m nigh on certain May is going to get overcome, either by being bypassed or by being hoofed. 

But if that happens, she doesn't get replaced by a compromisey, Lidington / Mundell type, or a wet, Hammond / Rudd type.

She gets replaced by whichever of the final two candidates that the members vote on* screams loudest about bullying Eurocrats and how we'll storm out if they won't treat us like the special little soldiers that we are.

May being there is bad. Any viable replacement for her makes it worse.

 

*Which given what happened last time, they definitely will this time.

[tonyh29]

1 hour ago, blandy said:

But I’m nigh on certain May is going to get overcome, either by being bypassed or by being hoofed.

I think we’ve all kinda been saying that since the morning after election night 2016 .. 

she cant be hoofed can she ? Best we can hope for is a few more defeats in the commons followed by a delay of Brexit and she might take the hint ...but past form says that’s unlikely 

[mjmooney]

[villa4europe]

but Detroit's not in Europe???

[blandy]

2 hours ago, ml1dch said:

But if that happens, she doesn't get replaced by a compromisey... type

Yes, I agree with you, if she were replaced it would be by a throbber, and that this is possible if she resigned and also worse, as you say.

But if she is not hoofed, but overcome as I put it - i.e. bypassed/forced to change by parliament (and I think that's more likely) - then we'll end up with either softer Brexit (which is by the maths most likely) or remain, eventually.

[blandy]

1 hour ago, tonyh29 said:

I think we’ve all kinda been saying that since the morning after election night 2016 .. 

she cant be hoofed can she ? Best we can hope for is a few more defeats in the commons followed by a delay of Brexit and she might take the hint ...but past form says that’s unlikely 

When I say hoofed, I mean by Parliament, sorry -  e.g. a Cooper type amendment thing where Parliament replaces her as being in charge of Brexit, not Theresa May. A situation where Parliament dictates what happens, not a Tory Throbber hostage.

[tonyh29]

47 minutes ago, blandy said:

When I say hoofed, I mean by Parliament, sorry -  e.g. a Cooper type amendment thing where Parliament replaces her as being in charge of Brexit, not Theresa May. A situation where Parliament dictates what happens, not a Tory Throbber hostage.

[snowychap]

 

[Genie]

I’m 1 year into my 3 year fixed rate mortgage deal. I’m nervous that a delay to Brexit will shaft me into being at renewal time when the markets go into chaos.

[ml1dch]

4 minutes ago, Genie said:

I’m 1 year into my 3 year fixed rate mortgage deal. I’m nervous that a delay to Brexit will shaft me into being at renewal time when the markets go into chaos.

Not impossible. But people would have predicted that markets would be in chaos right now considering where things stand, and mortgage rates today are pretty much the same as they were when you took that deal a year ago.

[Genie]

32 minutes ago, ml1dch said:

Not impossible. But people would have predicted that markets would be in chaos right now considering where things stand, and mortgage rates today are pretty much the same as they were when you took that deal a year ago.

I agree but a lot is down to the fact nothing is still agreed. If we go hard Brexit I would expect a very rocky next year or 2 with inflation and interest rates bouncing all over the place.

[choffer]

 

[Chindie]

They can barely muster any numbers to stand outside Parliament with a sign. Walking from Sunderland? Snigger.

[bickster]

2nd Ref now!