Government changes to #IMBill were published overnight…. This is their version of ⁦@neill_bob⁩’s amendment. /1
It may have solved their political problems, at least in the Commons, but does not solve their legal ones. /2
The threat unilaterally to rip up important parts of the Withdrawal Agreement continues at least arguably to infringe the duty in article 5 WA to “refrain from any measures which could jeopardise the attainment of the objectives of this agreement”. /3
This seems to have been the hill that Jonathan Jones died on, and to have informed the government advice read out in the Commons by Brandon Lewis last week, and defended by him yesterday./4
Clause 45 still allows the WA to be overridden for any reason or for none. Suggestions e.g. by Lord Keen on Tuesday that this power is calibrated for use only in tightly defined circumstances (e.g. to implement Art 16 of the NI Protocol) are simply not reflected in the Bill. /5
And the suggestion that the law-breaking powers in the Bill are directly related to EU threats of a GB-NI food embargo are given the lie by the fact that they refer to quite different parts of the agreement: export declarations NI-GB (clause 42) and state aids (clause 43). /6
The Bill does not read like a defensive measure, but as a deliberate and much broader attack on the WA that the PM signed up for, on which he won the election, and that was designed to work whether we make a future relationship agreement or not. /7
Does the Neill amendment, as now adopted by the government, improve the position? Well, it requires the consent of the Commons (NB not the Lords) before the law-breaking powers can be used. /8
A heavily-whipped Commons, that is, with a huge government majority, which will be asked for its view at a moment of major national crisis. This makes no difference to the EU, and why should it? /9
If the Chinese government decided to tear up the Sino-British joint declaration on Hong Kong, would it matter if the People’s National Congress was required to approve its intentions first? /10
And if the EU decided to resile from the WA protections for British citizens living in Europe, there would be outrage in this country – regardless of whether the EU decision had to be ratified by essentially the same people who took it in the first place. /11
That outrage would be justified because we have to run our international relations as we run our everyday life – on the principle that the law is obeyed and agreements are honoured. /12
This is not an arcane debate between lawyers about the status of international law: it goes to the absolute fundamentals of what it takes to be trusted./13
My sense from @UKHouseofLords is that a very wide range of people – business people, diplomats, trade unionists, on both sides of the old Brexit-Remain divide – understand this at least as well as the lawyers. /14
If you don’t stick to what you agreed, and the established mechanisms for achieving it (including in the WA itself), your reputation suffers and you tend not to get what you want. /15
We need a future relationship agreement, and I hope may still get one. But threatening to tear up the WA makes it less likely, not more, that we get a good one. /16
American perceptions that this bill threatens the Good Friday Agreement threaten also to give Ireland, which is very well connected in the US Congress, something approaching a veto on a future UK-US trade agreement. /17
If this strategically pointless threat is ever activated, we will be in unexplored territory: the consequences will be unpredictable and potentially extreme. /18
When playing 4-dimensional chess, it is rather important to stick to the rules. Otherwise you just end up throwing pawns at each other. /19
In @UKHouseofLords we have (rightly) limited powers, and influence only if people will listen. But these points will be strongly made over the next few weeks. It’s what we’re there for. /20 end

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More from @bricksilk

24 Sep
Here are my thoughts on the super-sensitive CHIS (Criminal Conduct) Bill #CHISBill, published today in time (just) for 2nd reading in @HouseofCommons on Monday…. /1
CHIS = covert human intelligence source…: put simply, an agent who for whatever reason (personal, financial, even patriotic) agrees to help the police, MI5 or others spy on suspected criminals. They are authorised under #RIPA… /2
CHIS play a vital role in disrupting terrorism and organised crime. Over the past year, CHIS operations by @metpoliceuk alone are claimed to have led to 3500 arrests, recovery of 100 firearms and 400 other weapons, seizure of 400 kg of Class A drugs, and £2.5m cash. /3
Read 20 tweets
15 Sep
The fullest defence yet of #InternalMarketBill (contingent powers only; Brandon Lewis wrong) was given by Lord Keen at the start of today's @LordsEUCom Justice meeting. Video here,… transcript in a few days. A court commitment stopped me attending, sadly.
He took the same line as at today's PNQ…, but had more time to set it out. In short #IMBill gives UK powers that may be needed to respond to a fundamental breach by EU of the WA or to exercise our rights under Art 16 of the NI Protocol or Art 62 VCLT.
Those conditions are not specified in the Bill (which is far broader than Keen's explanation could justify), and there was no evidence that HMG's fears are realistic or that this is a wise negotiating strategy. But intellectually, an improvement on previous defences (a low bar).
Read 5 tweets
10 Sep
Lord Keen has defended the Government's position, and his own. His main point was that the Government has not asserted the power to depart unilaterally from a recently-agreed Treaty, just invited Parliament to consider the matter. Over to us! /1
So would it be OK for Parliament to pass a law allowing specific international commitments, recently accepted and passed into law, to be simply disregarded? Lord Keen (wisely perhaps) did not address the moral/reputational aspects of this, but pointed to a "precedent". /2
Not the Finance Act 2013, which may now have been quietly forgotten ... /3
Read 10 tweets
8 Sep
The Ministerial Code still mandates compliance with international law, despite a change to its wording, as the Court of Appeal confirmed in 2018:… Image
The (concise) judgment of the Court of Appeal is here…. It records these reassuring words from Lord Faulks, the ex-Justice Minister now heading the Commission into judicial review. Image
The attempt to change the meaning of the guidelines was strongly fought by the late lamented Sir Paul Jenkins, predecessor as Treasury Solicitor of Jonathan Jones who resigned this morning.
Read 4 tweets
8 Sep
Astonishing news. I know Jonathan Jones @PermSecGLD well: he is a lower-key character than his predecessor, but his resignation speaks volumes about the independence bred into all decent barristers. /1
It may not be fanciful to derive from this RT of @davidallengreen another recent sign of his disenchantment: it refers to the ill-judged and derogatory comment by @ukhomeoffice (which @PermSecGLD once proudly served) about "activist lawyers". /2
Principled resignations by senior government lawyers are rare: but remember Elizabeth Wilmhurst…, who stepped down in 2003 over the reversal of her advice on the illegality of the Iraq War /3
Read 7 tweets
5 Sep
STOP PRESS! Just heard from @akulith’s counsel (Sir N Forwood QC and J Flynn QC) that EU’s General Court has suspended the appointment of @akulith’s successor as Advocate General of the CJEU.
Text of the Order is here
It’s astonishing that the Member States and CJEU allowed things to happen in this way, especially given the rule of law issues regarding judicial dismissals in Poland.
Read 6 tweets

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