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Mark Elliott Profile picture
Mark Elliott
@ProfMarkElliott
Professor of Public Law, University of Cambridge. Fellow, St Catharine's College, Cambridge. Author of https://t.co/aswwmsSgnC
7 subscribers
Oct 18 • 5 tweets • 2 min read
This story by @cazjwheeler in the Sunday Times undermines the narrative that the government — including the Prime Minister — has energetically sought to advance over the the last week, and suggests the CPS adopted an indefensibly rigid approach. /1 thetimes.com/uk/politics/ar…Image If it really is the case that the CPS dropped the case because the Deputy NSA declined to adopt a particular form of words in his evidence, that implies an extraordinarily rigid approach that it will be hard for the Director of Public Prosecutions to defend. /2 Image
Oct 8 • 11 tweets • 3 min read
I am puzzled by the apparent position of the PM on the dropping of the prosecutions in the alleged China spying cases. I am not an expert in this area so am happy to be corrected. But it seems to me that two things are being conflated. /1 Under the (now repealed) Official Secrets Act 1911, as interpreted by the courts (including by the Court of Appeal in Ivanova[2024] EWCA Crim 808, the 'enemy' in question must have been an 'enemy' at the time the offence was committed. That much is uncontroversial. /2
Dec 13, 2023 • 10 tweets • 4 min read
1. Just catching up with @Policy_Exchange's briefing on the Rwanda Bill. policyexchange.org.uk/wp-content/upl… 2. Academics (including, it seems, @AdamJTucker and me) are implicitly accused of being 'wildly irresponsible' by 'invit[ing] the Supreme Court to overthrow' parliamentary sovereignty: Image
Dec 12, 2023 • 10 tweets • 4 min read
1. The UK Parliament's Joint Committee on Human Rights (@HumanRightsCtte) has published a preliminary analysis of the Rwanda Bill. Here's a short thread with some key excerpts. committees.parliament.uk/publications/4…
Image 2. The Committee notes that if Rwanda remains unsafe, the effect of the Bill would be to permit removals nevertheless and to prevent courts from stopping them, thus breaching Articles 3 and 13 ECHR. Image
Dec 11, 2023 • 10 tweets • 3 min read
1. The 'Star Chamber' has spoken (on the Rwanda Bill). Only a 'partial solution', it concludes. lawyersforbritain.org/wp-content/upl…
Image 2. Key concern relates to clause 4, which permits challenges on individual grounds (as opposed to on the general ground that Rwanda is an unsafe country). Image
Dec 11, 2023 • 12 tweets • 4 min read
Constitutional lawyers may find suggestions that parliamentary sovereignty is an 'assumption' less surprising, since the suggestion emanates not from four KCs who have just written to a newspaper but from judges themselves. (1) Indeed, one of the leading theoretical accounts of parliamentary sovereignty, published by Sir William Wade in the Cambridge Law Journal in 1955, insists that the sovereignty of Parliament lies 'in the keeping of the courts'. (2)
cambridge.org/core/journals/…
Image
Dec 9, 2023 • 13 tweets • 3 min read
The Government's ECHR Memo on the Rwanda Bill makes interesting reading. The absence of a s 19 statement of compatibility notwithstanding, the Bill is said to be capable of application compatibly with the ECHR. (1) publications.parliament.uk/pa/bills/cbill… The Government's position, as set out in its ECHR Memo, on clauses 4 and 5 of the Rwanda Bill (dealing with individual circumstances and ECtHR interim measures respectively) seem to me to be particularly strained and/or telling. (2)
Sep 22, 2022 • 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, 2022 • 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
assets.publishing.service.gov.uk/government/upl… 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, 2022 • 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 theguardian.com/politics/2022/… 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, 2022 • 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, 2022 • 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, 2022 • 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 erskinemay.parliament.uk/section/4683/c… Image
Jul 12, 2022 • 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, 2022 • 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, 2022 • 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 publiclawforeveryone.com/2022/06/13/the…
Jul 8, 2022 • 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. publiclawforeveryone.com/2022/07/07/bor…
Jul 7, 2022 • 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, 2022 • 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, 2022 • 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, 2022 • 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. parliamentlive.tv/Event/Index/24… 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.