So here’s my take on the Alito opinion, as an outsider who has no expertise in US constitutional law. Just a couple of points that strike me. 1/ How an issue is framed is crucial, also for judicial decisions. Here the framing is “is there a right to abortion in the Constitution?” 2/

The EU rule-of-law issue continues to elicit feverish debates. I think it’s important to say a few things about the supremacy of EU law - or actually its primacy, which is the better term. And about the ECJ. 1/ The ECJ confirmed the primacy of EU law over member state (“domestic”) law as far back as 1964. It should actually be a completely non-controversial principle, as it aligns with long-established international law: treaties are binding.2/

This thread seems to have struck a chord, so it’s perhaps worth adding a couple more illustrations, all in the category of EU law 101. 1/

https://twitter.com/pieteeckhout/status/1450728918055596033

I recently wrote a paper on a very old ECJ case, Donckerwolcke (translation: dark cloud …) 1976. It concerned free movement of goods between France and Belgium.2/

Some thoughts on the Astra Zeneca vaccine supply debacle and the underlying legal issues. Warning: all just based on what is publicly available, which is not a lot. 1/ The UK now claim that they simply have a better contract with AZ, which provides for exclusivity (UK first), and that that contract trumps the EU one. 2/

On the day the Commission starts legal proceedings against the UK for the IM Bill, a few thoughts on the significance of this attempt to get around the provisions of the Withdrawal Agreement. 1/ If enacted, the Bill is equivalent to crossing the rule-of-law Rubicon. This for the following reasons. 2/

The proposed UK Govt powers to “interpret” the WA with the EU, and in particular the NI Protocol, are not innocent at all. 1/ The Protocol is fiendishly complex and difficult to implement. It’s also incomplete: a lot of vital detail is missing and still needs to be agreed. 2/

A short thread on how the UK quarantine rules are a blatant violation of EU law - which, whether people like it or not, still applies in the UK because of the Brexit transition. 1/ The rules clearly hinder free movement of persons. They therefore need to be justifiable under one of the exceptions to free movement. The protection of public health is such an exception. So far so good. 2/

So the UK Government is reneging on its commitments in the Political Declaration which it signed just a few months ago. Calls for a thread. 1/ First the claim that the new White Paper (WP) is not faithful to the Political Declaration (PD). This is clearest when it comes to level playing field. The PD devotes a whole paragraph to this (77), in pretty clear language. 2/

Yesterday the EU published its negotiating directives for the Brexit trade talks, which reiterated its insistence on the level playing field (UK dynamic alignment with EU environmental and social standards). See my full blog post analysis here: bit.ly/2VuuMFs Thread 1/ The official @Number10press immediately pushed back, arguing that the level playing field provisions undermine the regulatory autonomy of the UK. There could be some truth to this. 2/

Today's Brexit news is that the Government will exclude an extension of the transition period, and enshrine this in the Withdrawal Agreement Bill. This is not a good-faith implementation of the Withdrawal Agreement. 1/ Why? The Bill is the vehicle through which the UK expresses its consent to the Agreement. It's a precondition for the UK's ratification. Yet through the Bill the UK would kill the scope for an extension, which may benefit the EU as much as the UK. 2/

Here's a cynical take on what lies ahead, on the Monday morning after the election. Johnson will continue to insist on concluding the negotiations in one year. This is a gift to the EU: they are already insisting on another round of sequencing.1/ Trade in goods and fish will come first, because the no-deal cliff edge is worst in this sector. But it is bad for the UK to prioritise this because it has few bargaining chips. A longer negotiation, including financial services and security, would be more balanced. 2/

I really don’t get this talk about NI being “legally” in the UK’s customs territory but “factually” or “in practice” in the EU’s. 1/ Customs unions are pure legal constructs. If NI is legally in UK customs union, then NI goods exported to the EU must pay the requisite EU duties. 2/

Why the European Council Must not Reject an Article 50 Extension ... verfassungsblog.de/why-the-europe… via @Verfassungsblog @Verfassungsblog In this blog I argue that, because of the Benn Act, and in light of the ECJ's Wightman judgment, the European Council cannot refuse an Art 50 extension as a matter of EU law. 1/

The UK’s proposal for regulatory alignment of NI, but no customs union, is wholly incoherent and unworkable. A thread to try to elucidate why. 1/ First, it contradicts economic integration theory 101. Customs is the basis, and an internal or common market is a further stage. The proposal puts this on its head for no discernible reason. 2/

Some thoughts on the Government's new Irish Protocol proposals. Not on the complexities or technicalities, but on the attempt to adopt a principled approach. 1/ First, there is the democracy principle, reflected in the need for Stormont to sign off on regulatory alignment, and to renew those vows every four years. Second, the sovereignty principle applied to customs: a sovereign country must have its own customs union.

It is so sad to see the political discourse in the UK descend into such violent and vile language, particularly on the Government’s side. 1/ The idea that this is HM’s Government, and not just a campaigning party, seems hopelessly lost. The PM just cannot disagree with a unanimous Supreme Court, let alone call death threats “humbug”. 2/

On whether unconstitutional government action is unlawful. Lord Sumption points out that UK constitutional conventions are not enforceable in the courts, as Miller (UKSC) confirmed. 1/ True enough. But in the Brexit case there is also EU law. Art 50 states that a Member State (MS) may withdraw “in accordance with its constitutional requirements”. Note “requirements”, not “law”. Broad enough to capture UK conventions. 2/

A question to twitter’s UK immigration law experts: am I right in thinking that, in the current state of the law, no-deal means that 3 million EU citizens lose their immigration legal status overnight? 1/ No statutory right to work, or study, or bring family over? 2/

The Art XXIV issue (that is 24 - I use the actual GATT numbering) and the one-page no-deal deal. A thread.1/ Let’s assume the EU would be willing to consider this, to turn away from the cliff or to clamber back up. I focus merely on substance, not process. 2/

A Brexit fact which is not acknowledged in the UK: the EU is not a unitary actor and this means there is no constant centre of political decision-making, in contrast with State capitals.1/ The European Council is the top decision-maker. It meets every couple of months, no more. 2/

@StevePeers @REMAIN_campaign @JolyonMaugham @Brigid_Fowler Not sure. The ECJ in Wightman said that a MS cannot be expelled in the course of the Art 50 process. It's clear Parliament, which is constitutionally sovereign, doesn't want to exit (yet), and there is not an Act saying this. 1/ @StevePeers @REMAIN_campaign @JolyonMaugham @Brigid_Fowler This doesn't mean the UK can play for time indefinitely. But a reasonable decision, taken "in accordance with its (the UK's) constitutional requirements", ought to be respected by the Eur Council. Particularly as revoke is still in play. 2/