By my reckoning, the Government has so far attempted in five ways to justify clauses 42 and 43 of the Internal Market Bill, which, if enacted, would allow Ministers to make regulations in breach of the Withdrawal Agreement /…
1. The powers would breach international law but only in a ‘limited and specific’ manner (Brandon Lewis, Northern Ireland Secretary) — but this is not a distinction the law draws: a breach of international law is a breach of international law /…
2. The powers are needed in case the Government needs rapidly to implement safeguards under Art 16 NI Protocol (Lord Keen, Advocate General) — but the clause 42–3 powers bear little relation to the matters with which Article 16 is concerned /…
3. The powers are needed in case the Government rapidly needs to do what Article 62 of the Vienna Convention allows (Lord Keen) — but Article 62 requires a fundamental change of circumstance and permits only withdrawal/termination, not repudiation of individual obligations /…
4. The Withdrawal Agreement is a ‘special’ form of treaty because it presupposes a Future Relationship Agreement, so it’s ok to breach the WA if no FRA materialises (various Ministers) — this is just wrong /…
5. The Internal Market Bill would amount to an ‘acceptable’ rather than an ‘unacceptable’ breach of the rule of law (Robert Buckland, Lord Chancellor) — but the law draws no distinction between these two forms of breach /…
So: five attempts to justify clauses 42–3, none of which is satisfactory as a matter of law.

Sixth time lucky? /ends

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More from @ProfMarkElliott

17 Sep
A second short thread on the Government’s proposed amendments to the Internal Market Bill — this time looking at what is said about judicial review. /…
Clause 45 contains what has widely been taken to be an ouster clause, i.e. ousting the courts’ capacity to judicially review regulations made under clauses 42 & 43. They are given effect ‘notwithstanding’ incompatibility with a wide variety of forms of law. /…
In particular, the reference in clause 45(4) to ‘any rule of domestic law whatsoever’ seems, on the face of it, to rule out judicial review on normal grounds. /…
Read 14 tweets
17 Sep
The Government has published its proposed amendments to the Internal Market Bill in order to give effect to the so-called climb down that is intended to placate sufficient Conservative MPs.

Here is the first of two short threads on this. /…
Here’s the amendment that’s intended to provide reassurance to MPs about breaching international law. /…
The effect of this amendment is very limited. It simply means that the Ministerial powers to breach the Withdrawal Agreement & NI Protocol don’t become legally exercisable until they are triggered by a vote in the House of Commons. /…
Read 9 tweets
15 Sep
This preposterous.

A short thread on why — and what the fact that the Government is advancing this argument might tell us. /…
The Salisbury convention can only conceivably bite on Bills that *give effect to* the governing party’s manifesto commitments, as distinct from Bills that *renege* on such commitments. /……
There was a clear commitment in the Conservatives’ 2019 manifesto to ‘get Brexit done’ by implementing the Prime Minister’s ‘great new deal’ as set out in the Withdrawal Agreement & the Northern Ireland Protocol. /……
Read 11 tweets
14 Sep
The new coronavirus regulations for England were published a few minutes before they entered into force and without any parliamentary scrutiny. @MattHancock said they were ‘super-simple’. They’re not — and they raise significant constitutional issues. /1…
First, publishing complex new regulations literally minutes before they become law compromises the rule of law: frequent/sudden changes diminish legal certainty, making it hard for law-abiding individuals and businesses to plan accordingly. /2
Second, the Government continues to rely on the Public Health Act 1984 to make these regulations. As @TomRHickman has argued, a clearer statutory basis for significant restrictions on liberty would, at the very least, be constitutionally desirable. /3…
Read 7 tweets
10 Sep
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…
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
Read 8 tweets
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.

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

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