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10 Sep, 8 tweets, 3 min read
The Guardian is reporting that it has seen a letter revealing a rift between Attorney General @SuellaBraverman and Advocate General Lord Keen on the Internal Market Bill. /1 theguardian.com/politics/2020/…
They agree that the Bill is a ‘clear breach’ of the UK’s international obligations under the Withdrawal Agreement and the Northern Ireland Protocol. /2
But the Attorney General, according to the Guardian, disagreed with Keen about whether Ministers acting under the Bill would be breaching the Ministerial Code. /3
Keen is correct; Braverman is wrong. The Ministerial Code says that there is an overarching duty on Ministers to obey the law. /4 assets.publishing.service.gov.uk/government/upl…
The Code used to refer explicitly to international law but now refers only to ‘the law’, thanks a change made by the Cameron government. /5 publiclawforeveryone.com/2015/10/26/the…
But the Court of Appeal has made it clear that the removal (by the Cameron government) of an explicit reference to international law did not relieve Ministers of the obligation to abide by it. /6 bailii.org/ew/cases/EWCA/…
And the Cabinet Office, in 2015, accepted that ‘the law’ includes ‘international law’. /7 commonslibrary.parliament.uk/research-brief…
The position is therefore perfectly clear: the Ministerial Code imposes an overarching duty on UK Government Ministers to comply with the law — including international law. /ends

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More from @ProfMarkElliott

Mark Elliott Profile picture
10 Sep
Attorney General @SuellaBraverman still hasn’t resigned, but she has broken her recent silence on the Internal Market Bill by publishing a statement of HM Government’s ‘legal position’ on it.

It runs to one side of A4.

And it is utterly risible.

/1

assets.publishing.service.gov.uk/government/upl…
The Government’s statement is risible because it utterly misses the central point of concern. That concern is that the Internal Market Bill authorises Ministers to repudiate specific, critical and recently agreed legal obligations under the Withdrawal Agreement & NI Protocol. /2
The AG freely acknowledges this and concedes that the UK is required, as a matter of international law, to discharge its treat obligations in good faith. She then attempts, but fails, to make an exceptionalist argument based on parliamentary sovereignty & dualism. /3
Read 9 tweets
Mark Elliott Profile picture
26 Sep 19
I expect to be on @BBCr4today at 7.10 am commenting on this suggestion that the Government may attempt to use an Order of Council to suspend the Benn-Burt Act that requires the PM to seek an Article 50 extension. /1
My view is that while a Government attempt to do this may cause delay (because of the need for judicial review) there is no sound legal basis for what appears to be proposed. /2
It is unclear from Sir John Major's speech exactly what may be in contemplation. One possibility would be an Order made under the royal prerogative. But that would plainly be incapable of suspending an Act of Parliament. /3
Read 14 tweets
Mark Elliott Profile picture
4 Sep 19
A short thread on what the Benn Bill, if enacted, will *not* do.

Many journalists have repeatedly indicated that the Bill will take no deal "off the table", or that it will "legally block" no deal.

But that isn't right. /1
As currently drafted, the Bill requires the Prime Minister to request a three-month Article 50 extension from the European Council.

But unless the Council unanimously agrees to extend Article 50, the 31 Oct deadline remains, and the UK exits on that date, deal or no deal. /2
This is important, including with reference to the Government's wish to hold a general election.

If those opposed to no deal want to rule out triggering a general election while no deal remains a possibility, simply getting the Benn Bill enacted is not enough. /3
Read 6 tweets
Mark Elliott Profile picture
9 Aug 19
In a piece I wrote yesterday, I challenged various suggestions made by Vernon Bogdanor in a Guardian article. He has now written an article in the Times making similar/further suggestions that seem to me to be highly questionable. /1 thetimes.co.uk/article/how-th…
First, Bogdanor says a no-deal Brexit could be prevented by legislating to extend the Article 50 period or to repeal the EU (Notification of Withdrawal) Act 2017. /2
But Parliament cannot extend the Article 50 period: at most, it can require the Prime Minister to ask the EU to do so, as it did via the Cooper-Letwin Bill in March; the EU would be at liberty to extend or not at its discretion. /3
Read 8 tweets
Mark Elliott Profile picture
1 Apr 19
This is a truly extraordinary article, in which John Finnis advocates proroguing Parliament until after 12 April, in order to 'terminate parliamentary debate' on Brexit.

A short thread. /1
Finnis goes on to argue that this would be 'wholly legitimate as a matter of constitutional principle' and would be 'in the interests of good government' and the 'responsible conduct of our international relations'. /2
Finnis seeks to justify this argument by reference to the referendum, to which he appears to attach such paramount importance as to warrant the deliberate termination of parliamentary debate. /3
Read 10 tweets
Mark Elliott Profile picture
27 Mar 19
A short thread on today's indicative votes, and what they tell us about the Brexit process so far. /1
MPs will be voting on an extraordinary range of options, including the revocation of Article 50, a second referendum, Labour's so-called softer Brexit and 'Common Market 2.0'.

This suggests three things. /2
First, that the range of views in Parliament remains so diverse that a consensus that a clear majority of MPs can gather around is very unlikely to emerge (at least any time soon - and, in this context of course, every day counts). /3
Read 10 tweets

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