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. /…
But placing Ministerial action, including regulations made by Ministers, beyond judicial review is a clear breach of the rule of law. A court would therefore seek, if at all possible, to preserve judicial review. /…
In a blogpost last week, I argued that there were two ways in which a court might approach this matter: either by means of (arguably strained) interpretation or by adopting the nuclear option of refusing to apply the ouster clause. /… publiclawforeveryone.com/2020/09/09/the…
@Jack_R_Williams also wrote about this in a very helpful piece on the @eurelationslaw blog. /… eurelationslaw.com/blog/clause-45…
Against this background, the Government’s proposed amendments to clause 45 are noteworthy. /…
The effect of these amendments is to provide that the normal time limits for seeking judicial review cannot be extended when a court is asked to consider the validity of regulations made under clause 42 or 43. This clearly envisages that judicial review *will* be available /…
It is difficult to understand how the Government thinks this relates to the rest of clause 45 which, as noted, say that such regulations have effect even if they are incompatible with domestic, EU or international law. /…
The amendment contemplates courts ruling that clause 42/43 regulations are unlawful and invalid — yet clause 45(1) says that they ‘have effect’ even if incompatible with domestic, EU or international law. /…
One way of reconciling these points would be say that even if a court decided a regulation under clause 42/3 was unlawful and invalid it would nevertheless continue to ‘have effect’ because of clause 45(1). But the idea of effective invalid regulations is legally oxymoronic. /…
An alternative approach would be to adopt the approach I suggested in last week’s post, by saying that regulations are not ‘made under’ clause 42/3 if they breach judicial review principles, because clause 42/3 don’t in the first place authorise such regulations. /…
A further possibility is that a court might seek to reconcile the tensions within clause 45 as amended by holding that the reference to domestic law in clause 45 does not include the grounds of judicial review, thereby enabling sense to be made of the clause as a whole. /…
Either way, the amendments to clause 45 *are*, I think, a climb down of sorts, because they clearly contemplate the possibility of judicial review — even if the disjunction between the original clause and the amendments create a number of conceptual uncertainties. /ends

• • •

Missing some Tweet in this thread? You can try to force a refresh
 

Keep Current with Mark Elliott

Mark Elliott Profile picture

Stay in touch and get notified when new unrolls are available from this author!

Read all threads

This Thread may be Removed Anytime!

PDF

Twitter may remove this content at anytime! Save it as PDF for later use!

Try unrolling a thread yourself!

how to unroll video
  1. Follow @ThreadReaderApp to mention us!

  2. From a Twitter thread mention us with a keyword "unroll"
@threadreaderapp unroll

Practice here first or read more on our help page!

More from @ProfMarkElliott

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
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 /…
Read 7 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. /… lordslibrary.parliament.uk/research-brief…
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. /… assets-global.website-files.com/5da42e2cae7ebd…
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

legislation.gov.uk/uksi/2020/986/…
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 ukconstitutionallaw.org/2020/04/16/tom…
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 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
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.

/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

Did Thread Reader help you today?

Support us! We are indie developers!


This site is made by just two indie developers on a laptop doing marketing, support and development! Read more about the story.

Become a Premium Member ($3/month or $30/year) and get exclusive features!

Become Premium

Too expensive? Make a small donation by buying us coffee ($5) or help with server cost ($10)

Donate via Paypal Become our Patreon

Thank you for your support!

Follow Us on Twitter!