Mark Elliott Profile picture
Professor of Public Law & Chair of the Faculty of Law, University of Cambridge | Blog: | Views personal
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Sep 22 9 tweets 3 min read
A very helpful thread on the Government's statement concerning the Retained EU Law (Revocation and Reform) Bill. I would just add one additional point... /1 The Business Secretary says in his statement that: 'There will no longer be a place for EU law concepts in our statute book.' /2
Sep 2 7 tweets 2 min read
I find this opinion on the Johnson Privileges Committee matter very odd. Much of it is concerned with the fact that the Committee's process may not adhere to legal standards that are wholly inapplicable to a political, parliamentary process. /1… The opinion notes near its outset that decisions by the Committee are not subject to judicial review, claiming that if they were, a court would find against the Committee. /2
Jul 13 4 tweets 1 min read
Confirmation that UK Government will table a confidence motion in itself. However, I don’t think this is a satisfactory answer to its refusal, contrary to well established principle, to make time for a confidence motion as framed by the Opposition. /1… The fundamental principle is that the Government must command the confidence of the House of Commons—a principle that is denied meaningful practical force if the Opposition cannot test whether the Government retains confidence by being granted time to move a confidence motion. /2
Jul 13 10 tweets 2 min read
I’m starting some annual leave soon and plan to take a break from Twitter while I’m away. Before I do, a short thread—prompted by recent events and some reactions to things I’ve said—on politics and the role, as I see it, of legal academics. /1 It’s nearly ten years since I started a blog and joined Twitter. Throughout that time I’ve tried to offer objective legal commentary and explanation. Eg in relation to Brexit, I put aside personal views to argue in favour of the Govt’s legal position in the Miller I case. /2
Jul 12 4 tweets 2 min read
Shadow Commons Leader, @ThangamMP, currently raising a point of order regarding Government’s refusal to allow a vote of no confidence tomorrow. Other Labour MPs pressing the point that convention requires time to be made. No reference to wording of motion so far. Now @RhonddaBryant making similar point to the one that @cath_haddon made earlier — that there is no rigid requirement regarding the wording.
Jul 12 5 tweets 2 min read
I find this concerning, since it undermines the constitutional principle that the Government must be able to command the confidence of the House of Commons: a principle that requires the Opposition, when appropriate, to be able to test that confidence via a vote. /1 The position in terms of constitutional convention is absolutely clear: according to Erskine May, the most authoritative statement of parliamentary procedure, the Government always accedes to Opposition requests for no-confidence debates. /2… Image
Jul 12 11 tweets 3 min read
In this Daily Mail article, the Attorney General expands, but offers little more detail on, her proposal to withdraw from the European Convention on Human Rights. It leaves a number of key legal issues unresolved. /1 First, as I noted yesterday, withdrawing from the ECHR would be incompatible with the Good Friday Agreement, which @SuellaBraverman claims is so important that the Northern Ireland Protocol should be breached in order (as she sees it) to protect the GFA. /2
Jul 11 5 tweets 2 min read
A few people have asked whether it would be possible to reconcile adherence to the Good Friday Agreement with withdrawal from the ECHR by continuing to provide for the protection of ECHR rights in domestic law in Northern Ireland. I don’t think so. /1 The GFA requires certain specific domestic effects to be given to the ECHR. Strand 1, para 5(b) requires the NI Assembly and public bodies to be disabled from infringing the ECHR, while para 26 says that ECHR-incompatible Assembly legislation must be treated as invalid. /2
Jul 11 4 tweets 2 min read
There are 3 fundamental problems with this. First, it implies being bound by treaty obligations is incompatible with sovereignty, whereas entering into such obligations is actually an exercise of sovereignty. Sovereignty is a resource to be used, not a relic to be venerated. /1 Second, it implies the NI Protocol can be ‘improved’ by enacting domestic legislation. It can’t. Domestic law cannot and will not change the terms of an international treaty. The NI Protocol Bill will breach, not amend or ‘improve’, the Protocol. /2…
Jul 8 4 tweets 2 min read
Do these bizarre appointments mean the constitutional arrangements for dealing with dreadful PMs are broken? No. They just show that MPs need to find their spines and remove Johnson using the relevant mechanism: a parliamentary no-confidence vote. /1 The tool is available and, as I explain here, can be used without necessarily triggering a general election. It is not that the constitutional instrument for dealing with the current situation is lacking: it just needs to be used.…
Jul 7 10 tweets 2 min read
Does the PM’s refusal to resign mean the UK is in a ‘constitutional crisis’? That’s a vague notion, but I think the answer is that it implies he’s willing to create one very soon. Another way of framing the question is: At what point *must* Boris Johnson resign? /1 As I’ve explained in another thread, Johnson has no ‘personal mandate’ as Prime Minister: that’s a concept unknown to the British constitution. Johnson’s invocation of ‘his’ 14 million votes is a constitutional dead cat. /2
Jul 6 5 tweets 1 min read
A Conservative MP—James Duddridge, one of Boris Johnson’s PPSs—has just been on Sky News claiming that Johnson has sent him out to say that he has ‘listened’ today and, having done so, plans to continue as Prime Minister. I wonder what Johnson heard when he ‘listened’? /1 Whatever he heard, it was presumably distorted by his misguided notion that he has a ‘personal mandate’ consisting of the 14m votes cast for Conservative candidates at the last election. Our constitutional system accords no such personal mandate to a Prime Minister. /2
Jun 29 5 tweets 2 min read
I listened carefully to Prof Boyle's evidence. As I understood him, he does not argue that the international law doctrine of necessity could save this legislation from unlawfulness, and bases himself instead on Art 16 NIP—which the Government *does not* propose to use. /1 If Art 16 NIP were invoked, it is far from clear to me that it would enable any, and certainly not all, of the things to be done that the NIP Bill proposes. (Boyle oddly, and in my view unsustainably, contends that the Bill envisages modest departures from the NIP.) /2
Jun 29 8 tweets 3 min read
The @CommonsNIAC hearing on the Northern Ireland Protocol Bill is just kicking off. Alan Boyle argues the Bill does *not* breach international law because it simply prepares the ground for the use of Article 16.… But Boyle's position invites the question why the UK Government has not indicated any intention to use Article 16, and why it is instead relying on the clearly hopeless argument that the international law doctrine of necessity applies.
Jun 26 5 tweets 2 min read
Two stories on the front of this morning's @ObserverUK neatly sum up where we are, constitutionally speaking, in the UK right now. /1 First, the PM reveals he has a 'massive project to change ... the constitution of the country'. This presumably refers in part at least — although frankly, who knows? — to his plans to reduce human rights protections by drastically weakening domestic courts' powers. /2
Jun 24 6 tweets 3 min read
Among the many obvious problems with this @MoJGovUK statement, one claim is objectively false. There was no manifesto commitment to replace the Human Rights Act. The House of Lords will therefore not be bound by the Salisbury Convention. /1 The Salisbury Convention does not legally limit the House of Lords' powers, but reflects a political understanding that it will not block Bills that implement manifesto commitments. Here's how the Joint Committee on Conventions defined it. /2…
Jun 22 34 tweets 8 min read
The Bill of Rights Bill has just been published.

I'll tweet some thoughts as I read through it...…

/1 It opens with an introductory clause setting out its aims. Interesting reference to UK as a 'parliamentary democracy': reflects narrative adopted by Raab in commons earlier — taking back control from courts and, in particular, the European Court of Human Rights. /2
Jun 22 12 tweets 3 min read
Raab statement on Bill of Rights still ongoing. Conservative MPs fulminating about 'ancient legal tradition', 'foreign judges', 'taking back control'. Daily Mail/Judicial Power Project playbook stuff. Bill won't appear until statement is completed. Raab making it clear in response to MPs' interventions that the Bill of Rights project is about taking back control from both the ECtHR and judges generally: the UK, and the UK Parliament specifically, must have the 'final word', he says.
Jun 15 9 tweets 3 min read
'Perhaps a conflict with the lawyers — and the courts — was just what ministers wanted.' Yes: a long process, now reaching its denouement, reflecting aversion to judicial scrutiny generally & European/international 'interference' especially.

Thread /1… Indeed, we can go further: it's now plain that the Government has an aversion to scrutiny *generally*, whether domestic or international, legal or political: see eg unlawful prorogation of Parliament; disdain for Ministerial Code & other political constraints/conventions. /2
Jun 13 18 tweets 5 min read
The Northern Ireland Protocol Bill has been published:… Clause 2 is important: it exempts the Protocol from the effect of s 7A(2) of the EU (Withdrawal) Act 2018, which provides for direct effect and primacy in UK of certain aspects of Withdrawal Agreement law.
Oct 21, 2021 5 tweets 2 min read
Reposting my response from yesterday to the Attorney-General's speech on (as she sees it) judicial interference in political matters — with which I take issue. The blogpost below links to my Twitter thread on this and to a short video. 1/3 Some people have queried whether it's sensible to respond to this sort of thing. I understand why the question is posed. But my view is that the direction of thinking in Government is clear and that it is important to identify, raise and explain concerns. 2/3