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Raphael Hogarth Profile picture
@Raphael_Hogarth
Jun 10, 2019 • 3 tweets • 2 min read • Read on X
Is @michaelgove nursing a plan to keep the UK in the EEA? "I will ensure that we are out of the CAP, out of the CFP, out of the Court, out of the Commission, out of the Parliament," he said today. No repeat of his 2016 pledge to "end free movement and bring numbers down".
@michaelgove He also promised a free trade agreement, of course. But he's a smart enough man, with smart enough Brexit wonks working for him, to know that he's not getting that without the backstop and a border in the Irish Sea. So it's interesting to see where he is drawing his red lines...
@michaelgove I'm told I've read too much into a speech with no autocue, and reminded that he also pledged to take back control of money, borders, laws.

I'm sure he'll be given opportunities soon enough to rule out EEA/free mvt unequivocally if he wants to. And/or, for that matter, Chequers.

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More from @Raphael_Hogarth

Raphael Hogarth Profile picture
Aug 2, 2022
Some thoughts on the Government’s new Guidance on Legal Risk – largely in defence of it – drawing on our @instituteforgov research on legal advice in gvt (below).
instituteforgovernment.org.uk/publications/j…
The guidance is for government lawyers. Its backbone is this risk matrix about how to communicate legal risk (left), which is pretty much the same as the previous version (right).
Some say this is a straitjacket. But we @instituteforgov found that lawyers and policy makers generally find it helpful (left). See chart (right) that shows how confusing it can be for lawyers to say "this is quite likely to be unlawful". Clients don't know what it means.
Read 13 tweets
Raphael Hogarth Profile picture
Sep 12, 2020
[Niche legal thread:]
With the greatest respect to lawyers citing it, I don't think the Court of Appeal's judgment in Gulf Centre says that ministers' duty under the Ministerial Code to comply with the law includes a duty to comply with international law. bailii.org/ew/cases/EWCA/…
The CA held that the 2010 code, which explicitly mentioned international law, imposed no duty to comply with the law additional to that which ministers already owed. It was "referential", i.e. "referenced" duties ministers already owed.
Though the explicit mention of intl law was dropped in 2015, the key duty under which it was subsumed - the general duty to comply with the law - was kept. The court held, therefore, that "the Deletion involved no change in substance".
Read 5 tweets
Raphael Hogarth Profile picture
Sep 9, 2020
So what is the "specific and limited" breach of international law contained in the Internal Market Bill?
S42 gives a minister the power to make regs about exit declarations. S42(4)-(5) say that these can include provisions disapplying rights/obligations that would otherwise apply as a result of domestic/international law (i.e. the Withdrawal Agreement or Withdrawal Agreement Bill). Image
Why is this a breach? Under s45, it applies notwithstanding domestic/international law that is inconsistent with it. This means, among other things, that it applies notwithstanding (ie it overrides) s7A EU (Withdrawal) Act, which puts the Withdrawal Agreement into domestic law. Image
Read 7 tweets
Raphael Hogarth Profile picture
Sep 9, 2020
If anyone is wondering whether and why it actually matters that the UK is committed to the rule of international law and the binding force of that law, here are just a few recent examples.
International law is the basis on which the UK, and Boris Johnson himself as foreign secretary, condemned the use of chemical weapons in Syria.

gov.uk/government/spe…
bit.ly/2R8RS17
International law is the basis on which the foreign secretary - again and again - condemned the National Security Law that China imposed on Hong Kong.

bit.ly/32ChudF
Read 10 tweets
Raphael Hogarth Profile picture
Sep 8, 2020
My analysis for @instituteforgov on the resignation of Sir Jonathan Jones, the Treasury Solicitor and the government's top legal official. It points to a much wider struggle over what the UK's commitment to the rule of law means. Does it include intl law?

instituteforgovernment.org.uk/blog/treasury-…
As a lawyer, Sir Jonathan has an overriding duty to act with independence in the interests of justice. When the government threatened to disregard the Benn Act over Article 50 last year, he stayed. Those were just words, he said. This time, gvt is acting.

instituteforgovernment.org.uk/blog/treasury-… Image
There's a much wider issue. Some argue that civil servants' duty to obey the law extends only to domestic law, and ministers are free to disregard international law. Sir Jonathan disagreed.

The reason: international law is law. So the UK respects it.

instituteforgovernment.org.uk/blog/treasury-… Image
Read 4 tweets
Raphael Hogarth Profile picture
Sep 8, 2020
At this event in Feb, I asked Jonathan Jones, who has reportedly just resigned over the government's threats to breach the withdrawal agreement, what approach gvt takes to international law. His answer is.... illuminating.
1/
 instituteforgovernment.org.uk/events/legal-a…
I asked: What approach do gvt lawyers take to these obligations given that, unlike domestic rules, they are not enforceable against the government before the UK courts? He said: "Fundamentally, international law is the law. It derives from obligations the government has...
2/4
entered into through treaty or otherwise arise under international law. We treat that as the law, and the government is subject to the rule of law and will comply with those obligations. So, the role of the lawyer [...] will be just the same: to give the best, professional...
3/4
Read 4 tweets

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