Very helpful thread. As George notes, govt's 'new objection of dogma/principle to the role of the CJEU cannot plausibly be fitted into Article 16. Where are the “serious difficulties” or “diversion of trade” being caused by its role?' (1)
Hence the need for legislation: Government would be overriding — ie *breaching* — Article 16, not exercising its powers *under* Article 16. UK legislation could make this lawful as a matter of domestic law *but not as a matter of international law*. (2)
This would raise precisely sort of rule-of-law-based and reputational concerns that arose when the Internal Market Bill was first introduced — concerns that arise from a form of British exceptionalism arising from misplaced faith in 'parliamentary sovereignty'.(3)
A certain strand of UK political opinion assumes that parliamentary sovereignty amounts to a form legal kryptonite (or does not care that it isn't). The trouble is, it only works in the UK: it does not licence breaches of international law *as a matter of international law*. (4)
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…
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
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
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.
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. /…
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. /…