Mark Elliott Profile picture
Professor of Public Law & Chair of the Faculty of Law, University of Cambridge. Author of
Chris🌟 #FBPPR #RejoinEU #FBPE #FBPA💙 Profile picture Madeleine Woodward Profile picture William Hite Profile picture George 🇪🇺🤘💙#FBPE Profile picture 5 added to My Authors
2 Jan
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…
Read 6 tweets
30 Dec 20
I’m grateful to @thetimes for referring to my comments on the EU (Future Relationship) Bill. /1
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
Read 9 tweets
29 Dec 20
This, from the so called ERG star chamber, exhibits impressive levels of cognitive dissonance. /1…
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
Read 4 tweets
29 Dec 20
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.
Read 7 tweets
17 Sep 20
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. /…
Read 14 tweets
17 Sep 20
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. /…
Read 9 tweets
15 Sep 20
By my reckoning, the Government has so far attempted in five ways to justify clauses 42 and 43 of the Internal Market Bill, which, if enacted, would allow Ministers to make regulations in breach of the Withdrawal Agreement /…
1. The powers would breach international law but only in a ‘limited and specific’ manner (Brandon Lewis, Northern Ireland Secretary) — but this is not a distinction the law draws: a breach of international law is a breach of international law /…
2. The powers are needed in case the Government needs rapidly to implement safeguards under Art 16 NI Protocol (Lord Keen, Advocate General) — but the clause 42–3 powers bear little relation to the matters with which Article 16 is concerned /…
Read 7 tweets
15 Sep 20
This preposterous.

A short thread on why — and what the fact that the Government is advancing this argument might tell us. /…
The Salisbury convention can only conceivably bite on Bills that *give effect to* the governing party’s manifesto commitments, as distinct from Bills that *renege* on such commitments. /……
There was a clear commitment in the Conservatives’ 2019 manifesto to ‘get Brexit done’ by implementing the Prime Minister’s ‘great new deal’ as set out in the Withdrawal Agreement & the Northern Ireland Protocol. /……
Read 11 tweets
14 Sep 20
The new coronavirus regulations for England were published a few minutes before they entered into force and without any parliamentary scrutiny. @MattHancock said they were ‘super-simple’. They’re not — and they raise significant constitutional issues. /1…
First, publishing complex new regulations literally minutes before they become law compromises the rule of law: frequent/sudden changes diminish legal certainty, making it hard for law-abiding individuals and businesses to plan accordingly. /2
Second, the Government continues to rely on the Public Health Act 1984 to make these regulations. As @TomRHickman has argued, a clearer statutory basis for significant restrictions on liberty would, at the very least, be constitutionally desirable. /3…
Read 7 tweets
10 Sep 20
The Guardian is reporting that it has seen a letter revealing a rift between Attorney General @SuellaBraverman and Advocate General Lord Keen on the Internal Market Bill. /1…
They agree that the Bill is a ‘clear breach’ of the UK’s international obligations under the Withdrawal Agreement and the Northern Ireland Protocol. /2
But the Attorney General, according to the Guardian, disagreed with Keen about whether Ministers acting under the Bill would be breaching the Ministerial Code. /3
Read 8 tweets
10 Sep 20
Attorney General @SuellaBraverman still hasn’t resigned, but she has broken her recent silence on the Internal Market Bill by publishing a statement of HM Government’s ‘legal position’ on it.

It runs to one side of A4.

And it is utterly risible.

The Government’s statement is risible because it utterly misses the central point of concern. That concern is that the Internal Market Bill authorises Ministers to repudiate specific, critical and recently agreed legal obligations under the Withdrawal Agreement & NI Protocol. /2
The AG freely acknowledges this and concedes that the UK is required, as a matter of international law, to discharge its treat obligations in good faith. She then attempts, but fails, to make an exceptionalist argument based on parliamentary sovereignty & dualism. /3
Read 9 tweets
26 Sep 19
I expect to be on @BBCr4today at 7.10 am commenting on this suggestion that the Government may attempt to use an Order of Council to suspend the Benn-Burt Act that requires the PM to seek an Article 50 extension. /1
My view is that while a Government attempt to do this may cause delay (because of the need for judicial review) there is no sound legal basis for what appears to be proposed. /2
It is unclear from Sir John Major's speech exactly what may be in contemplation. One possibility would be an Order made under the royal prerogative. But that would plainly be incapable of suspending an Act of Parliament. /3
Read 14 tweets
4 Sep 19
A short thread on what the Benn Bill, if enacted, will *not* do.

Many journalists have repeatedly indicated that the Bill will take no deal "off the table", or that it will "legally block" no deal.

But that isn't right. /1
As currently drafted, the Bill requires the Prime Minister to request a three-month Article 50 extension from the European Council.

But unless the Council unanimously agrees to extend Article 50, the 31 Oct deadline remains, and the UK exits on that date, deal or no deal. /2
This is important, including with reference to the Government's wish to hold a general election.

If those opposed to no deal want to rule out triggering a general election while no deal remains a possibility, simply getting the Benn Bill enacted is not enough. /3
Read 6 tweets
9 Aug 19
In a piece I wrote yesterday, I challenged various suggestions made by Vernon Bogdanor in a Guardian article. He has now written an article in the Times making similar/further suggestions that seem to me to be highly questionable. /1…
First, Bogdanor says a no-deal Brexit could be prevented by legislating to extend the Article 50 period or to repeal the EU (Notification of Withdrawal) Act 2017. /2
But Parliament cannot extend the Article 50 period: at most, it can require the Prime Minister to ask the EU to do so, as it did via the Cooper-Letwin Bill in March; the EU would be at liberty to extend or not at its discretion. /3
Read 8 tweets
1 Apr 19
This is a truly extraordinary article, in which John Finnis advocates proroguing Parliament until after 12 April, in order to 'terminate parliamentary debate' on Brexit.

A short thread. /1
Finnis goes on to argue that this would be 'wholly legitimate as a matter of constitutional principle' and would be 'in the interests of good government' and the 'responsible conduct of our international relations'. /2
Finnis seeks to justify this argument by reference to the referendum, to which he appears to attach such paramount importance as to warrant the deliberate termination of parliamentary debate. /3
Read 10 tweets
27 Mar 19
A short thread on today's indicative votes, and what they tell us about the Brexit process so far. /1
MPs will be voting on an extraordinary range of options, including the revocation of Article 50, a second referendum, Labour's so-called softer Brexit and 'Common Market 2.0'.

This suggests three things. /2
First, that the range of views in Parliament remains so diverse that a consensus that a clear majority of MPs can gather around is very unlikely to emerge (at least any time soon - and, in this context of course, every day counts). /3
Read 10 tweets
21 Mar 19
More than a million signatures notwithstanding, revocation of the UK's Article 50 notification doubtless remains extremely unlikely.

But if revocation were to occur, what would need to happen in legal terms?

A short thread. /1…
In this piece, @JolyonMaugham assumes that revocation could be accomplished by the Government using its prerogative powers, without the need for legislation. /2…
However, it is very hard to see how this could be reconciled with the UK Supreme Court's judgment in the Miller case, in which it was held that Article 50 could not be *triggered* without legislation. /3…
Read 11 tweets
13 Dec 17
A short thread:

Has Parliament 'taken back control' by passing Amendment 7 to the EU (Withdrawal) Bill?
Amendment 7 amends clause 9 of the EU (Withdrawal) Bill. Clause 9 allows the Government to make secondary legislation implementing withdrawal agreement.
Clause 9 is an especially wide power because it allows primary legislation, including the Withdrawal Bill itself, to be amended.
Read 16 tweets
15 Oct 17
MPs seem to be under misapprehension that UK legislation can stop Article 50 in its tracks. It can't. +
Parliament can, of course, legislate to insist it must approve any deal before Ministers agree to it. Withdrawal Bill could so require. +
But the default position is that Article 50 will operate to eject UK from EU at end of March 2019, deal or no deal. +
Read 12 tweets
12 Sep 17
Now that EU (Withdrawal) Bill has survived second reading, focus must shift to amending it to address fundamental constitutional concerns +
A good starting point would be the recommendations made by the Lords Constitution Committee in March 2017…

Committee urged a proportionate and targeted system of parliamentary scrutiny.

Extraordinary powers call for corresponding oversight.

Read 15 tweets