Thread by @GeorgePeretzQC

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

As Frost says, it is a “codification”: put more bluntly, it doesn’t say anything at all that isn’t orthodox English constitutional law.

It was always accepted during our EU membership that Parliament could legislate in breach of EU law and that if Parliament made it clear that that was what it intended to do, the UK courts would follow Parliament, not EU law.

The same applies to the incorporation of, and supremacy of, the Withdrawal Agreement and Protocol in our domestic law effected by s7A of the EU (Withdrawal) Act 2018 (inserted by the 2020 Act).

No one disputes that Parliament could, by using clear wording, pass legislation inconsistent with the WA/Protocol which would have effect in U.K. law, even though that would be a breach of the WA.

(Though the House of Lords voted down, with a huge majority, such legislation when presented to it last year and the betting must be that it would do so again.)

Section 38 doesn’t alter that analysis at all. So it’s hard to see how it can be said to be “very important”, or “incredibly useful” (though since it was put in as a comfort blanket for the ERG, Frost perhaps felt he needed to genuflect to it).

Worth looking at the wording here.

Not having the ECJ “by another route” appears to rule out the “not Swiss” option.

https://twitter.com/georgeperetzqc/status/1452934624557023232

But NB “final arbiter” and “direct settlement”: in the not Swiss model, the arbitration panel is the “direct settlement” forum: but it sends the ECJ all questions of EU law, and accepts the answers. And the “final decision” is (technically) made by the panel. Clever, eh?

Just to note that while EU law applies at all in NI, it will be impossible to avoid the ECJ having the final say in determining what it means: the EU cannot agree anything else.*

(*Irrelevant exception: the EFTA Court.)

The last sentence is an important acknowledgment of how Article 16 works.

On retained EU law. In answer to Frost’s last question, let me introduce the concept of an Act of Parliament, which will do the job. What else is needed?

(Justinian was an autocrat.)