Some thoughts on the Government’s new Guidance on Legal Risk – largely in defence of it – drawing on our @instituteforgov research on legal advice in gvt (below).
instituteforgovernment.org.uk/publications/j… The guidance is for government lawyers. Its backbone is this risk matrix about how to communicate legal risk (left), which is pretty much the same as the previous version (right).

[Niche legal thread:]
With the greatest respect to lawyers citing it, I don't think the Court of Appeal's judgment in Gulf Centre says that ministers' duty under the Ministerial Code to comply with the law includes a duty to comply with international law. bailii.org/ew/cases/EWCA/… The CA held that the 2010 code, which explicitly mentioned international law, imposed no duty to comply with the law additional to that which ministers already owed. It was "referential", i.e. "referenced" duties ministers already owed.

So what is the "specific and limited" breach of international law contained in the Internal Market Bill? S42 gives a minister the power to make regs about exit declarations. S42(4)-(5) say that these can include provisions disapplying rights/obligations that would otherwise apply as a result of domestic/international law (i.e. the Withdrawal Agreement or Withdrawal Agreement Bill).

If anyone is wondering whether and why it actually matters that the UK is committed to the rule of international law and the binding force of that law, here are just a few recent examples. International law is the basis on which the UK, and Boris Johnson himself as foreign secretary, condemned the use of chemical weapons in Syria.

gov.uk/government/spe…
bit.ly/2R8RS17

My analysis for @instituteforgov on the resignation of Sir Jonathan Jones, the Treasury Solicitor and the government's top legal official. It points to a much wider struggle over what the UK's commitment to the rule of law means. Does it include intl law?

instituteforgovernment.org.uk/blog/treasury-… As a lawyer, Sir Jonathan has an overriding duty to act with independence in the interests of justice. When the government threatened to disregard the Benn Act over Article 50 last year, he stayed. Those were just words, he said. This time, gvt is acting.

instituteforgovernment.org.uk/blog/treasury-…

At this event in Feb, I asked Jonathan Jones, who has reportedly just resigned over the government's threats to breach the withdrawal agreement, what approach gvt takes to international law. His answer is.... illuminating.
1/
instituteforgovernment.org.uk/events/legal-a… I asked: What approach do gvt lawyers take to these obligations given that, unlike domestic rules, they are not enforceable against the government before the UK courts? He said: "Fundamentally, international law is the law. It derives from obligations the government has...
2/4

Quick note on the mysterious legal basis for the Leicester local lockdown. It seems:
- the restrictions that Leicester shares with the rest of England are enforceable by @leicspolice, but the special ones for Leicester are *not*
- this will change at the weekend. When @MattHancock announced the Leicester local lockdown to the Commons on Monday evening, he promised a statutory instrument to give it effect. There is no sign of that statutory instrument yet.

The government seems to mean quite a lot of different things by "local lockdown" - it really feels if ministers have the vague sense that flare-ups are going to require targeted measures, but have no real strategy for how to do it.

1/12

https://twitter.com/BBCNews/status/1277547568466198528

In the video, the PM repeats the claim that local lockdowns have already worked in places like Weston-super-Mare. This was news to people in Weston-super-Mare, who did not realise they'd had a local lockdown. In fact, a hospital just temporarily closed.
2/
somersetlive.co.uk/news/somerset-…

Local lockdowns and the law: do central government and local authorities have the powers they need to put in place "local lockdowns in future where there are flare-ups", as the government has promised?

Or are they likely to legislate further?

1/9 Under the Public Health (Control of Disease) Act 1984, a local authority can apply to a magistrate for an order to
- close/disinfect premises
- seize/isolate/disinfect "things"
- do any of the below (incl isolation) to persons who may be infected and present risk to others.

2/9

Wow - quite a major change to the English lockdown regulations is coming into force at 11:30am tomorrow. It will no longer be illegal to leave or be outside of home without reasonable excuse. Instead, it will be illegal to stay overnight away from home without reasonable excuse. This is in addition to the widely trailed change, that gatherings of up to 6 ppl from different households will be allowed outside. There's also now a definition "gathering": when 2 or more people are in the same place to undertake any social or other activity with each other.

I think the Durham Constabulary statement is good in parts and not so good in others. I also think there are lessons from this Cummings saga about the way the government has handled the whole lockdown. The police say they are interested in breaches of Regulation 6 of the lockdown regulations, which are laws, and not government guidance, which are not. Good. The police have sometimes forgotten that they have no business enforcing guidance. See blog:
instituteforgovernment.org.uk/blog/governmen…

How the government must and should change the law as a result of the PM's announcement: (1) Most trivially, the PM said "we will increase the fines" those who break the rule. If he means the fixed penalty notices that police officers can mete out, these amounts are set in Reg 10 of the lockdown regulations. That will need changing.
legislation.gov.uk/uksi/2020/350/…

This is an odd argument, in my view. As we argued in recent @instituteforgov paper, there were arguments in favour of using primary legislation rather than the CCA, but I don't think they were legal ones, and it does create scrutiny issues.
(brief thread)
instituteforgovernment.org.uk/publications/p…

https://twitter.com/CommonsPACAC/status/1255503246220722176

Gove says that the legal advice was that the government could only use the CCA in response to a "bolt from the blue" and, if they used it when they had time to pass primary legislation instead, it was open to legal challenge.

The government needs to move away from "wartime" decision making and involve parliament in forthcoming coronavirus decisions when it returns in virtual form next week, the @instituteforgov argues in a new paper. Ministers should do the following 5 things.
instituteforgovernment.org.uk/publications/p… (1) Get MPs' approval for the lockdown regulations at the earliest possible opportunity. These are the most draconian restrictions in living memory, maybe ever. It's extraordinary that they were enacted by ministers, and only in Scotland have they been approved by a legislature.

*No one should conclude from anything that follows that they may, or should, disregard the rules or guidance on staying at home.*

There is growing legal debate on whether the regulations which give effect to the lockdown are lawful. An attempt to explain that debate follows.
1/ The regulations provide, among other things, that no person may leave home without reasonable excuse. They also restrict gatherings of more than two people from different households. Breaking these rules is an offence punishable by a fine.

2/

Amazing to think that, after MPs rightly raised concerns about scrutiny of powers in the Coronavirus Act, the 'lockdown' regulations passed last Thursday without being brought before parliament at all. Here are 3 dates for your diary on these regs: 16 April, 18 May, 25 September. 16 April* is when the government must undertake its first review of whether it is necessary to keep these regulations in force. As soon as the Secretary of State considers they are not necessary, he *must* revoke them (in whole or in part).

*15 April for Wales, 18 April for NI.

Some police forces are, in my view, making three mistakes in how they enforce the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, which provide that "no person may leave the place where they are living without reasonable excuse." First, some police think that their job is to enforce the government's guidance, when in fact their job is to enforce the law.

*The law* is that you may not leave home without a reasonable excuse. The legislation gives non-exhaustive examples of such excuses.

When ministers (like the new Attorney General, or the Prime Minister) talk about getting judges out of politics, they need to be much clearer on what they are actually talking about.

3 questions they need to answer. (1) Do you want to:

(a) *increase* judges' political accountability by reforming appointments, or

(b) *reduce* their ability to rule on political decisions, by changing public law?

These have both been mooted, and you could do both, but I think they're in tension.

I think there might be less space between the UK and EU on "alignment" than either is making out.

The PM says: "There is no need to accept EU rules on competition, subsidies or environment... The UK will maintain the highest standards [...] w/o the compulsion of a treaty."

1/7 And yes, the Commission's draft mandate, by contrast, does want UK alignment. All rules, including future ones, on state aid. "No reduction" of labour/environment standards.

2/7

A few quick thoughts on today's fascinating @thetimes story from @BrunoBrussels and @oliver_wright, that the EU wants ECJ judge to be given the jurisdiction to enforce the UK-EU future relationship. There are three different jobs the ECJ might (realistically) be asked to do in respect of future UK-EU agreements

(1) Accept references from joint UK-EU institutions (like the joint committee, or a panel of arbitrators), to determine the meaning of EU law.

The @instituteforgov explainer on the Withdrawal Agreement Bill is now up. Here is what's in the bill.

instituteforgovernment.org.uk/explainers/wit… @instituteforgov TRANSITION

instituteforgovernment.org.uk/explainers/wit…