Note 1: Martin Howe offers no “solution” either. (This fantasy “solution” does not count.)
Note 2: what the High Court judge in Allister said about careless and silly use of words like “colonial”: -
(Incidentally, the “respondent” arguing that the effect of the Protocol was limited was the Secretary of State for NI in the current government this spring, before it suddenly decided that there was a serious democratic problem.)
PS I think there are serious problems with democratic accountability under the Protocol. The Commission’s proposals do something (though not enough) within the current framework to address them.
But it’s also important to recognise that there are also democratic problems with the way in which NI is governed within the UK: as no GB party stands in NI no NI MP is ever in government in the UK and there is a serious accountability problem.
Devolution helps with democratic accountability of course: but the current government isn’t exactly an enthusiast for that.

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More from @GeorgePeretzQC

26 Oct
A couple of comments on David Frost’s evidence to @CommonsEU yesterday: - committees.parliament.uk/oralevidence/2…
Here is some discussion of s38 of the EU (Withdrawal Agreement) Act 2020 (slight slip by the chair, Bill Cash, in citing the Act).
This is s38
Read 17 tweets
26 Oct
This is right and important. Though note that even if (which is unlikely) the EU agreed to rewrite the Protocol and to replace adjudication with the “not Swiss”* arbitration model, all disputes on the meaning of these obligations would end up in the ECJ. Just more slowly.
*The model proposed in the EU/Swiss agreement that was in the end rejected by Switzerland.
Read 7 tweets
24 Oct
I half agree. I’m a bit reluctant to suggest that lawyers stick to their silos, partly because I don’t stick to mine, and partly because cases don’t respect silos, so any of us might conceivably find ourselves having to argue out of silo at some point.
And there are brilliant legal journalists (some lawyers, some not) who manage to say perceptive things across the range.
But where lawyers do write out of their area of expertise, a certain diffidence is often a good idea: and certainly research and (perhaps) discussing with those who do know the area intimately.
Read 4 tweets
24 Oct
@SBarrettBar @SteveBakerHW You’re muddling up the issue of independence with the question of what you call “politicisation”.
@SBarrettBar @SteveBakerHW I have never got anywhere near suggesting that the U.K. courts aren’t independent. And Rasmussen nowhere suggests that the ECJ isn’t independent.
@SBarrettBar @SteveBakerHW What I am saying - a point to which you have provided no answer - is that (as Sir David Edward explains in his article) neither the ECJ nor any other constitutional/supreme court can possibly avoid taking “political” decisions, in the sense that they involve “political” factors.
Read 6 tweets
24 Oct
Quite some leap from saying that there’s an “ideological” element in the ECJ’s case-law (of which Supreme Court is that not true? Canada? UK? US?) to the (if I may so, highly political and IMO false) claim that it is so ideologically compromised as not to be a court at all.
One problem is, I think, that Steven sets up an ultimately incoherent divide between legal propositions and ideological/political ones.
But when courts decide constitutional questions - ranging from rights questions to eg questions about the powers of devolved parliaments - the answer is inevitably inflected by views about the content and importance of rights or how the balance of powers should work.
Read 9 tweets
22 Oct
Indeed. These list the the areas of EU law that still apply to the UK in respect of Northern Ireland. (NB that in some cases - eg State aid - EU law applies to some UK or even GB measures if they affect NI.)
This is the idea - taken from the proposed model for 🇨🇭.
Read 16 tweets

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