A serious question for my UK law colleagues:

By refusing properly to implement the NI Protocol, is HMG acting in breach not only of EU-UK withdrawal agreement as matter of international law; but also of EU (Withdrawal) Act 2018 as matter of domestic UK law?

Here's why I wonder:
EU (Withdrawal) Act 2018 - as amended by EU (Withdrawal Agreement) Act 2020 - makes provision for EU-UK withdrawal agreement, including NI Protocol, to take full effect under domestic law. Protocol provisions thus have direct legal effects in UK, with force of primary legislation
True: Act also creates various delegated ministerial powers relating to Protocol. But I'm not sure those are very relevant to Johnson Government's conduct. And in any event, surely powers should only be for purpose of implementation - not to contravene/frustrate Protocol itself.
Which raises the question: is the UK Government's failure to respect the binding provisions of the Protocol / its adoption of measures that do not comply with Protocol's legal duties, actionable under UK (not just international) law, i.e. by way of judicial review...
I ask because (since I finished my book and moved on to new stuff) I haven't spent any serious time following the detailed UK legal developments. But I'm not aware of any changes to primary legislative framework. So the analysis feels like it is at least worth further exploration
... and the answer is potentially very important. This debate is conducted as if Johnson's illegality were only of concern to international law. Yet if HMG's deliberate refusal to comply with Protocol is treated as direct breach also of UK law itself = a different kettle of fish.
In particular: those parties who support Protocol (e.g. Alliance in NI) and / or those NGOs who defend rule of law (e.g. Good Law Project) could bring Johnson Government to court for breaching binding obligations under UK law itself. Not just left to international law / EU action

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More from @mdouganlpool

7 Jun
Yes, EU-UK relations are poor & in respect of NI have the potential to get even worse. But as usual, populist UK media pretend (at best) this is something that just sort-of-had-to-happen after Brexit or (at worst) = evil plot by wicked EU to punish poor little Britain. In fact...
... deep rupture in EU-UK policy relations = result of deliberate Tory choice to pursue Hard Brexit. & serious deterioration in EU-UK political relations = equally deliberate decision of Johnson Regime, desperate to "justify" costly Brexit by whipping up anti-European xenophobia.
But more than just media propaganda, this is about cementing the hard right Brexit Project by trying to drive a deep wedge between EU & UK: diplomatically by UK acting like some malignant "West Coast Russia"; at home by poisoning minds for a generation. We can't let them succeed.
Read 4 tweets
18 May
Would you like a few quotes to illustrate just how dishonest are the current Brexitist claims that the EU has "weaponised the Irish border" or is "interpreting the Protocol in a totally unreasonable way"?

Voila, from text of OUP book as written between February-May 2020:
"[Under Johnson's revised Protocol] customs and regulatory checks will indeed take place on trade between Northern Ireland and Great Britain - something which we were told no British Prime Minister could ever agree to"
"[Thanks to Johnson's agreement] Northern Ireland is now being used as the guinea pig... and risks being left worse off under the Johnson Protocol than it would have been under the previous backstop proposals from either the Commission or Theresa May"
Read 5 tweets
29 Apr
I get the feeling some people still just don't / won't believe the adverse impact of the UK Internal Market Act 2020 upon devolution in Scotland and Wales. [Norn Iron is a special case, thanks to Johnson's Protocol...]

So I'll spell it out as clearly as I can in 4 wee tweets:
1) For all practical purposes, the ability of Scotland or Wales to do anything that regulates physical goods in a way that deviates from English standards, has been suppressed – regardless of the social or welfare policy that the devolved institutions might seek to pursue.
2) The power of the Scottish/Welsh parliament to regulate other aspects of the market for physical products (advertising, licensing, all sorts of commercial practices) has been significantly curtailed: at best scrutinised, at worst overruled, if interferes with English business.
Read 6 tweets
27 Apr
One point that Brexitists are particularly ignorant/dishonest about, re NI Protocol: they regularly claim it guarantees "unfettered market access" between NI & GB, so EU is acting unreasonably / even in breach of Protocol itself, by trying to enforce checks. Utter rubbish. Why?
1st, the reference to "unfettered market access" relates only to movement of goods from NI to GB (not the other way round). And even then, there is an immediate exception for any export limits imposed by EU law to fulfil international obligations on control of certain goods.
2nd, there is no provision saying "unfettered market access" for movement of goods from GB to NI. That has to take place in accordance with legal duties laid down in Protocol. EU & UK must use "best endeavours" to facilitate such trade - but still in accordance with those rules.
Read 4 tweets
27 Apr
Just finalised talk on implications of UK Internal Market Act 2020 for devolved policymaking by Scotland / Wales in field of public health, e.g. strategies to combat illness & deaths arising from tobacco / alcohol / obesity.

Key points in short thread, for those interested:
1) Imagine Scottish Government & Parliament want to ban marketing of product proven to have adverse health impact on population, e.g. uber-sugary soft drinks or super-salty junk food. Effect of Act? They can only ban marketing of Scottish made products; not those made in England.
2) Or imagine Welsh Government & Senedd want to restrict advertising of / consumer access to unhealthy products (without banning them per se). Effect of Act? Need to check Welsh rules aren't trying to exclude / somehow discriminate against English goods: that's no longer allowed.
Read 6 tweets
2 Apr
I wish the Telegraph/Mail/Express would hold back on their evil-EU-proxy-war for just a few days. We get it: you're rabid English nationalists itching for a scrap with some forriners. Yadda-yadda-yadda. Though I suppose they do need something to fill pages with, since it's not...
... challenging their darling government. Say, over ideas like racism really being a figment of the imagination of people who just need to work harder. What a contrast with their coverage, eg of Labour's struggle to confront antisemitism. Anti-racism, a la carte, nouvelle cuisine
Speaking of which: shocking as it is, such a transparent Tory-led attempt to "rewrite the narrative on race and inequality" to suit their own worldview, it is still marked by exactly the same leitmotif as virtually every other facade of government policy under the current regime:
Read 4 tweets

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