Former government lawyer. Worked on bills, negotiated for the UK, defended HMG in UK and European courts. Now teaches law and writes about law.
Jun 8, 2022 • 8 tweets • 2 min read
The plan so obviously breaches the Withdrawal Agreement that some "senior figure advising the government on legal matters"—the Treasury Solicitor, Counsel or Parliamentary Counsel, say—is bound to have given advice like this. The Braverman line just is not legally credible.
Who could this "senior figure advising the government on legal matters" be? I've mentioned the Treasury Solicitor (the top legal official), Parliamentary Counsel (the drafting lawyer) and an external barrister. The other obvious possibility is the Legal Adviser to the FCDO.
Jul 21, 2021 • 7 tweets • 2 min read
The JR provisions in the Judicial Review and Courts Bill are limited, and reasonable as far as they go (though some will say "Cart" JRs shouldn't be abolished). The big worry is that clause 2—the ouster of "Cart" JRs—will be a prototype of further piecemeal ouster clauses later.
What I mean is: if this clause preventing a limited sort of JR is accepted and given effect by judges, then MPs might be invited by ministers to include similar clauses in future bills whenever they fancy excluding judicial review. Ministers might try pushing this worryingly far.
Sep 6, 2020 • 6 tweets • 1 min read
The most interesting recent development in constitutional law has been the Supreme Court's enforcement of very strong presumptions about what Parliament means in its legislation.
One such presumption is the "principle of legality", that Parliament does not legislate in breach of fundamental common law rights. It's not all that easy for ministers to draft legislation clear enough to rebut the presumption.
May 25, 2020 • 4 tweets • 1 min read
Having watched Cummings in front of a select committee, I reckon the chance of him making a success of this statement and Q&A, and avoiding further damage to the PM, are vanishingly low. Johnson is mad to allow it.
There's a real risk he'll say or do something completely bonkers, and come across angrier and worse than Trump. Even if he resigns, he's quite likely to wound Johnson badly as he goes. Johnson is mad to allow it.
Aug 19, 2019 • 9 tweets • 2 min read
The Fixed-term Parliaments Act diagram in this BBC story is reasonably good. But it seems to based on what I call the "more deferred duty to resign" theory of the Act. That's not the best theory. bbc.co.uk/news/uk-493912… (1)
The problem is the little box that asks "Can MPs agree on alternative PM?". You only need to ask that question if you think the PM needn't resign unless and until someone else has a majority (or something). But that's a flawed way of thinking about it. (2)
Mar 22, 2019 • 14 tweets • 2 min read
I'm still worried about why the government hasn't introduced legislation clearly empowering the PM to agree an a50 extension. I think it's needed to ensure there simply can't be a legal challenge to the extension.
I'm not saying a challenge would succeed. HMG has decent arguments that might well win the day. But the challengers would also have decent arguments and (a) might even win; (b) could destabilise policy just by challenging. HMG should exclude the risk.
Feb 20, 2019 • 10 tweets • 3 min read
The success or failure of @TheIndGroup and perhaps other splits may be determined by marginal tactical decisions now, that turn out later to have been major strategic choices. Extreme care is needed. 1/
I think it *could* be a mistake to drift into becoming one all-purpose "centre party" drawing from all other parties. The risk is of having no clear identity, electoral positioning or mission. If this is where it's going, those joining now must communicate a clear aim. 2/
Jan 21, 2019 • 16 tweets • 3 min read
I am astonished that Sir Stephen Laws has apparently said this (I didn't hear him this morning). I think it reflects a serious misunderstanding of the constitution.
Sir Stephen is a much more eminent lawyer than me, having been First Parliamentary Counsel. I am a mere undoctored law lecturer who was once a government legal footsoldier. Credentials are undoubtedly on his side. But now let's look at the substance of his point.
Nov 13, 2018 • 6 tweets • 2 min read
May needs a miracle. She must put unheard of pressure on her own MPs to back her. She needs some threat that will make even those most opposed to her swallow hard and think again. Nothing so far suggests she's bold enough. But she *could* try this. 1/
She could threaten to resign. I don't mean to resign as party leader. Nor do I mean she could threaten an election. I mean she could threaten in advance *her resignation as PM and that of her administration* if defeated. 2/.
Apr 23, 2018 • 8 tweets • 2 min read
This purely tactical move by ministers may be very significant in how the Fixed-term Parliaments Act is understood and applied. A real constitutional question is whether there is such a thing as a "matter of confidence" any more under the FTPA.
If this vote is announced as matter of confidence and HMG loses, May will have two options. One way of applying the FTPA then would be for the government simply to resign (meaning Jeremy Corbyn would be appointed PM and try to form a government).
