It’s important that general political commentators like @peston get to grips with precisely what is at issue here, and don’t shove it off to legal correspondents as a technical legal matter.
Effective judicial review is about ensuring that government decisions - from small planning decisions to decisions to close down half the economy - are within the powers we (through Parliament) have given them and meet the standards of fairness and thoughtfulness that we expect.
Effective judicial review is not anti-democratic: rather, it is a vital mechanism to ensure that those whom we elect (and their officials) comply with the rules debated and set by Parliament and the standards we want them to live up to.
Effective judicial review is the enforcer of our democratic instructions, contained in law, against the possibility of abuse of power, unfairness, and sloppy thinking by those whom we have entrusted to carry out those instructions.
We will need to see what the current government actually proposes. But the signs are not encouraging: its latest proposals managed to be misleading, incoherent and sinister all at the same time. As explained here.
So I go back to where I started: political commentators like @peston need to get on top of this. And - for reasons pointed out by ALBA and quoted in my thread - it should concern commentators from the right as much as those from the left.
If they want help in understanding the issues, there are many lawyers who know what is at stake and can explain things simply and accurately. Twitter (with DMs if required) is good at finding those people. Use it.
Ultimately, any political commentator should be fascinated by this. It’s about power and accountability: and the current government’s attempts to grab power and evade accountability.
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Why didn’t the current government do more to get a better deal in the TCA? My theory: taboos against going anywhere near mobility of people (very linked to services); and against asking the EU for anything for fear of having to make concessions in return.
The Scotland Act 1998 says that legislation is outside the competence of the Scottish Parliament if it “relates to reserved matters”.
See section 29(3) in the above quote for some help as to what “relates to” means. You look at the purpose of the legislation at issue and its effect in all the circumstances.
Worth reading this response by the Administrative Law Bar Association to the current government’s latest consultation on “reform” to judicial review. adminlaw.org.uk/wp-content/upl…
(Disclosure: I had a very minor hand in it - but not in any of the paragraphs I’m going to quote.)
Opening salvo. The current government’s description of the findings of the independent review is simply false, in critical respects.
In the context of imaginative proposals to put the Union on a solid footing, it is worth reading this letter from Lord Salisbury to party leaders on the @ActofUnionBill proposal, here reaction.life/constitution-r…
There is a lot in the Bill to chew on: but its vision of a Union between the four nations, set out on a basis that limits the powers and functions of the Westminster parliament seems to me to be along the right lines.
Oh dear, more of this “EU law is code-based and inflexible, English law is flexible and pragmatic” trope. It’s poor stuff. telegraph.co.uk/business/2021/…
This is a re-hash of a paper published by @PoliteiaUK a couple of months ago, accompanied by an equally poor Express article. Brief reasons why it’s hopeless here.
As I explain, what this is really about, to the extent that it makes any real sense, is moving to a US rather than an EU model of regulation. But one can see why, forensically, that call is dressed up as a “common law” (English) v. “civil law” (foreign) issue.
The problem (to use Stephen Weatherill’s terminology) is the disconnect between what the Protocol *says* (at least on a casual reading) and what it *does* (on a detailed reading that looks carefully at the whole text).
This, on customs, the Protocol *says* that NI remains part of the UK customs territory, but what it actually *does* is to apply the whole of the EU Customs Code to imports into NI (incl. imports from GB), with a carve-out for the level of tariffs (but not checks) on some goods.