I should stop describing things like this as ‘extraordinary’: they’re becoming depressing commonplace, but I find it difficult, and don’t wish, to reconcile myself to that fact. /1
I don’t pretend to understand fully why conditions have developed that facilitate this sort of post-truth politics, and am conscious that others have thought and written about this carefully. But to some extent at least, the causes must include constitutional ones. /2
It’s increasingly clear that the Government is seeking to insulate itself from effective scrutiny, including by Parliament (see, eg, unlawful prorogation in 2019) and the courts (see, eg, current ‘independent’ review of judicial review). /3 publiclawforeveryone.com/2020/08/03/the…
It seems to me that undermining and limiting opportunities for external challenge to Government must contribute to the existence of conditions that facilitate the broader failures of governance that are now an everyday reality in the UK, even though that is not the whole story /4
Governance has never been, and never will be, perfect, but it does appear that there is a clear and worrying direction of travel in the UK at present, including the rejection by Government of what I have described as basic ‘constitutional civility’. /5 publiclawforeveryone.com/2020/11/23/the…
There’s no easy or single solution to these issues, and I don’t subscribe to the view that a ‘written constitution’ is any sort of panacea. But we need to reflect carefully on whether current arrangements are fit for purpose. The answer to that question is not obviously ‘yes’ 6/6

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More from @ProfMarkElliott

30 Dec 20
I’m grateful to @thetimes for referring to my comments on the EU (Future Relationship) Bill. /1
In my comments, I focussed on the very unusual technique adopted in clause 29, which requires UK law to be read and applied as if it has been modified in line with the future relationship Agreements even if it has not actually been modified. /2
That approach, although it’s not wholly unprecedented and shares something in common with the direct effect provisions in the ECA 1972 and the EU (Withdrawal Agreement) Act, creates significant concerns regarding clarity and legal certainty - ie establishing what the law is. /3
Read 9 tweets
29 Dec 20
This, from the so called ERG star chamber, exhibits impressive levels of cognitive dissonance. /1 lawyersforbritain.org/wp-content/upl…
Their position appears to be that EU membership was incompatible with UK sovereignty (it wasn’t) but that the future relationship agreement is fine because the UK can is bound either to amend domestic law or accept tariffs in relevant circumstances. /2
Their fundamental error is to assume that sovereignty is a binary concept that is either possessed or not. In reality it is a resource that each State can deploy as it chooses, balancing the cost of limiting freedom of action against the benefits that accrue from doing so. /3
Read 4 tweets
29 Dec 20
Cl 29 of the Future Relationship Bill is certainly interesting. If I’ve understood correctly, it is, in effect, an automatic Henry VIII clause that requires existing domestic law to be treated as subject to the Agreements to the extent that they have not been implemented.
By automatic Henry VIII clause, I mean that cl 29 has the effect of requiring us to proceed as if domestic law had been amended via a Henry VIII power in circumstances where it has not been amended but where amendment is needed to implement the Agreements.
That does not strike me as ideal from a legal certainty perspective. But I guess it’s an acknowledgment that there may not be time to make all necessary changes to domestic law by more conventional means.
Read 7 tweets
17 Sep 20
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 20
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 20
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

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