david allen green Profile picture
A writer and commentator about law and policy Account sometimes locked
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29 Sep
Chapter, not article

This 'security' power was given to 25 barons, not to the people

But that power was removed a year later, in 1216

Only three provisions of Magna Carta are still in force: legislation.gov.uk/aep/Edw1cc1929…

Oh, and there is no 'the' before Magna Carta

That is all
Wait until these patriots discover that Magna Carta was not even written in English
To the extent anyone cares, here is the @britishlibrary's English translation of chapter 61 of Magna Carta 1215


Compare it with the paraphrase in the original tweet Image
Read 5 tweets
27 Sep
The realities of politics and the judiciary

My new @FT article on the artificial divide between law and politics - of course there is an overlap and is naïve to affect otherwise

Also in print edition tomorrow

ft.com/content/b8a549… Image
@FT I also have fun with the Attorney General's Panel and the role of Treasury Counsel - two taboos that will irk many at the Bar that they are questioned or even mentioned
"There may be obvious faults with US system of appointing Supreme Court judges and federal judges generally, but main difference between that and the English approach to the politics of the judiciary is that the Americans are open about the relationship, and the English are not."
Read 4 tweets
23 Sep
Just imagine if anyone had suggested in 2016 we would end up with legal recognition for Kent border, with police powers of coercion to enforce it in respect of trade, Brexiters would have *howled*

But on a rainy Wednesday afternoon that is what the government has just announced
Until the transition period ends, it will be easier administratively for a UK company to trade with a EU country, than it will be after 1 January to send a truck across the county border with Kent

What a mess
Who would have guessed that the immediate effect of 'taking back control of our borders' was for the UK...

...to impose administrative and trade borders in the north Irish sea and around the county of Kent
Read 4 tweets
22 Sep
The Green Party former leader @natalieben has written to the @FT to criticise my post on the constitution: ft.com/content/27e55f…

Her criticism, and my response
@natalieben @FT The insistence by many that every discussion about the UK constitution has to become a debate about the merits of a codified constitution is a problem and a distraction

Governments gets away with so much because people prefer this stale academic debate to practical solutions
@natalieben @FT There is a book or an essay to be written by someone entitled "Why I will no longer discuss the merits of a written constitution"

As the discussion itself is a problem and a distraction: a legal-political rabbit hole we keep diving into
Read 4 tweets
19 Sep
The UK’s constitution is not working

When there is no proper accountability and transparency, government policymaking becomes sloppy

New by me, at @FT

@FT "The UK constitution is drifting into the arena of the unwell..."

Many thanks to my lovely editors at @FT for allowing that allusion to a certain film.
@FT I am on favour of a working constitution, codified or not

A codified constitution, in principle, is neither good nor bad - and in practice can be quite bad

My view is that the 'codified' debate is a distraction from seeing how things can be improved without codification
Read 7 tweets
16 Sep
We are all simply watching Her Majesty's Government punching itself in its face, just because it can

There is no wider purpose to this political and constitutional drama

"Look what I can do!"
"Look, I bet you don't think I can punch myself in the face even harder"

- Please don't punch yourself in the face, there really is no need, and think about the needless lasting damage

"You doubt me? I have taken back control. Just watch!"

"Now, watch what I can do to myself with this hammer"

- Look, there is no need for any of this, and you are damaging yourself now and in the future

"You question my resolve? This puts the pressure on you, not me!"

Read 4 tweets
16 Sep
Every so often a politician speaks of 'enshrining' a thing in law, and another will talk of placing 'locks' into legislation

Both are ugly phrases but they are significant

Laws are laws and statutes are statutes

They have the same effect regardless of whether they are about 'enshrined' things and 'locks'

They can be amended and repealed (and 'fudged')

And so even when words like 'enshrine' and 'lock' are used, nothing special is happening to the law

It is a rhetorical not a legal device - a misdirection

Read 5 tweets
14 Sep
Some further thoughts on 'enabling' legislation.

The clue is in the word

'Enabling' legislation enables a government to do a thing or things that that government would *not* be able to do *but for* that enabling legislation

In short: removing a check or a balance or a restriction

And so the important question is not about the policy aim of the legislation - that will always be nice and plausible nod-along stuff - public health, peace, anti-terrorism, etc

But what check or a balance or a restriction is being *disabled*

Read 6 tweets
14 Sep
I have just turned on parliament.tv to watch the debate and I do not think I have regretted anything more this year
Up turn - @Ed_Miliband giving a good speech
Miliband offers to give way to Johnson so he can specify which clause addresses the 'threat' of a blockade


Johnson stays seated

Great, telling moment
Read 7 tweets
14 Sep
Just reading around the 1933 Enabling Act for no particular reason

Some general observations follow

When we think of 'Enabling Act' and Germany, we think of the 1933 one

But in fact it was one of several in Germany after 1919 - ten or so had been made in Weimar Germany

All for very good reasons, of course

Hitler's Enabling Act was different in scale, not in principle

The 1933 Enabling Act was also expressly time-bound

It was to last only for a definite period of four years

Of course, it was just then renewed (and renewed)

Read 10 tweets
14 Sep
Two current legal/constitutional events - formally unconnected - go to why there are serious problems about the UK state

The first is the drama over the threatened breach of domestic and international law

What has been lost in much of thee drama is the exact nature of the threatened breach

The key clauses in the Bill are, in effect, enabling clauses

They enable a minister to make regulations, regardless of whether those regulations are in breach of domestic and international law

Read 10 tweets
13 Sep
Once upon a time a government proposed breaking the law

The matter got to the first gatekeeper, the government's most senior legal official

'you cannot do that, I will resign'

But he government shrugged, and carried on its way

The government came to the next gatekeeper, the Attorney General

The Attorney General nodded and clapped and cheered, and the government carried on its way

The next gatekeeper was the Lord Chancellor, who had sworn to protect the Rule of Law

The Lord Chancellor said some threatened breaches of the law were acceptable, and the government carried on its way

Read 7 tweets
12 Sep
"Ha ha, you thought Article 50 would never be triggered" come the occasional taunt

Looks around at the increasing political, policy, legal and economic chaos

'And this is why,' is my response

'No sane government would have inflicted this on itself'
My view, which has been consistent since the referendum, is that Brexit should have been done by a single overall treaty between UK and EU

Dealing with both exit and relationship issues

The Article 50 process was never fit for purpose as a means of departure for a member state
I am not a Remainer and I have never had any objection to Brexit in principle

I want UK's future to be as having close Association Agreement with EU - and I think this will suit UK and EU in medium to longer term

But the rush to to exit via A50 without thought was not rational
Read 7 tweets
11 Sep
This morning it all still seems so bizarre

A Conservative government is risking a full-blown constitutional crisis and destroying its international reputation over...

...increasing the role of public sector in subsidising otherwise uncompetitive private sector businesses

'Conservative' in that last tweet to be said in exactly the same way Neil Kinnock said 'Labour' in his famous speech on Militant
Missing in all this - as conspicuous as a missing witness statement - is the failure of UK government to explain why it wants to depart from EU State aid rules

What exactly is the UK's alternative vision of State aid?

And why does it require this big departure?

This is the gap
Read 7 tweets
10 Sep
This statement is so carefully written, and fun to read just as carefully.
Let's go through the statement, as it is really so delightful
The 'Government has today published...'

Note: not the Treasury Solicitor, not the Attorney General's Office, not the Lord Chancellor

The 'Government'

And, indeed, oddly it was the Cabinet Office that published the 'statement'
Read 13 tweets
9 Sep
Remarkable drafting on show here

In effect: 'notwithstanding' the provisions are in breach of the law
Clause 45(2)(a) says, in effect, this provision will have legal effect, regardless of it being unlawful

There is a certain beauty and deft elegance to the drafting of this most extraordinary and illiberal clause

They are really going to try this
In summary:

'This shall have legal effect notwithstanding it being held not to have legal effect'

Such brilliance makes you wonder why it has never been tried before
Read 4 tweets
8 Sep
French fishermen are no doubt looking forward to breaching international law in "specific" ways
Spain is no doubt looking forward to breaching international law regarding Gibraltar in "specific" ways
Argentina is no doubt looking forward to breaching international law regarding the Falkland Islands in "specific" ways
Read 6 tweets
8 Sep
This is significant, so very significant
The head of the government legal service is also, historically, the Treasury Solicitor

A grand title and position, as worthy as the Attorney General and Lord Chancellor

The late great @HenryBrooke1 wrote a detailed post on the role here sirhenrybrooke.me/2016/10/27/the…
Read 13 tweets
7 Sep
The suggestion that a sovereign state cannot be sovereign when it is party to a treaty is inherently absurd, as the modern notion of a sovereign state is that it is a state capable of entering into a treaty
The modern nation state, at least in the west, derives in part from the treaty of Westphalia: en.wikipedia.org/wiki/Westphali…

To say that being party to a treaty negates being a sovereign state is to, well, be ignorant of four hundred years of history, law and diplomacy
Even the EU, which can in certain circumstances also be a party to certain international agreements, can only do so because of the prior terms of the two treaties of EU between the 27 sovereign member states

Being able to freely enter into treaties is what sovereign states *do*
Read 5 tweets
5 Sep
If Johnson genuinely believed the press held him to account, he would move to dismantle it

Like he is seeking to with an independent judiciary, parliamentary scrutiny, an impartial civil service and diplomatic corp, and so on

Any effective check or balance is to be undermined
And for reply guys who will distort that tweet into support for the disruption to the press, please see this earlier tweet
Johnson and Cummings should loathe the press as much as they do 'activist lawyers'

But they do not
Read 4 tweets
3 Sep
Why lawyers, law students and anyone interested in the law should subscribe to @prospect_uk - and take advantage of getting @BarristerSecret book (offer has been extended to today)

@prospect_uk @BarristerSecret Prospect is the current affairs magazine that takes good legal commentary seriously

@AlexDean94's articles prospectmagazine.co.uk/author/alex-de…

@WomaninHavana's articles

@JakeBenRichards' articles

@prospect_uk @BarristerSecret @AlexDean94 @WomaninHavana @JakeBenRichards Pitting Helena Kennedy against Jonathan Sumption


There is also my drivel.

Read 5 tweets