I have now read the Safety of Rwanda Bill, an extraordinary document. What makes it so is the combination of 2 factors: the use of conclusive legislative fictions ousting Cts; and the requirement to act even though it will or may breach PIL designed to protect fundamental rights. Legal fictions - including ones that oust the adjudicative function of the court - are not per se unacceptable from a RoL perspective, though always deserving of close scrutiny and narrow construction: it all depends upon context and unproblematic uses abound (eg in tax).

I remain convinced that the Cab Rank Rule is entirely the wrong target and a counter-productive one at that for people rightly concerned about how legal experts (in energy, water, planning, in farming or industry, PPPs) use (or don’t use) their expertise.
theguardian.com/environment/20… The concern of a gross mismatch of expertise and resource is real, make no mistake and this is a particular problem in the field of climate change amongst others (benefits law, consumer law, regulatory law).

Given all this insistence on the pro Boris camp about complete simulation of court norms, we must assume BJo has not been coached (beyond his opening statement) by his lawyers. For instance, rC9.4 prohibits it in all settings for barristers. But he will like many witnesses in big litigation have gone through “witness familiarisation” courses - effectively role play to teach how to give evidence, not what evidence to give.

So, as a barrister specialising in EU law disputes for nearly 30 years in a very wide area of application here is my hot-take on this.Truss vows to scrap remaining EU laws by end of 2023 risking ‘bonfire of rights’ theguardian.com/politics/2022/… Let's start with the obvious point: it is undeliverable, unless is a sleight of hand (like pretending to repeal the ECA during the transition period and then immediately re-enacting it via EUWA). There are c. 100+ Acts of Parliament and thousands of SIs affected by this.

The decision in #LloydvGoogle, and the sole speech of Lord Leggatt, is hugely important for effective access to justice for: (i) mass consumer claims, whether privacy-based or not; (ii) against big tech or other similarly scaled Defendants. These are my takeaways 1/ First, the speech is realistic about the practical impossibility of “opt in” GLO proceedings for modest sums (two figure or low three figure damages): see [25]-[28]; and identifies that the “opt out” CPO model in competition law is designed to address those flaws: [29]-[32] 2/

OK, having now read the Parliamentary Commissioner report on Owen Paterson, and his summary of complaints against it, I can say if were hearing a 30 min permission hearing: a. I would require a huge amount of persuasion that he had not had a full opportunity to put his case 1/ The submissions he made were obviously legally sophisticated (and pretty ambitious); the pivot of the charges was the objective analysis of his approaches, whether there was a serious wrong (in milk food etc) and whether benefit were conferred/sought for those paying him. 2/

The CHIS (Criminal Conduct) Bill is a pretty extraordinary read as is the ECHR Memorandum accompanying it. Points that emerge on a first read:
#1. The criminal conduct authoriseable (subject to the HRA override) is unbounded, from petty criminal damage to the most grave offences. #2. The HRA override is a triumph of formalism without robust mechanisms to test ostensible authorisations either in advance or after grant/as used. IPCO oversight and the qualified route to IPT is no substitute for judicial prior authorisation or embedded adversarial challenge

So the row back from Brandon Lewis's concession that IL will be breached has begun: see Lord Keen at 10.02 am parliamentlive.tv/Event/Index/e2… This new, more sophisticated legal case, rather than the PM's gibbering last night, is what needs to be addressed. The nub of the argument appears to be that it is a form of potential retaliatory self-help should the EU breach the WA at 11th hour by barring food movements from GB to NI, a giving of teeth to Article 16 NIP
.

What a strange external legal team to advise the AG. A PIL specialist (where the PIL issues are clear - an obvious breach) a 1 year qualified barrister who worked for Vote Leave..1/2 Government's top legal advisers divided over move to override Brexit deal theguardian.com/politics/2020/… 2/2 and who is not on the C Panel, and a public law academic of firm views. Not a combination you see every day. Surely it was a job for the Treasury Devil?

Thread: A v. important Brexit consultation on Regulations to widen the power to depart from retained EU caselaw is being done in an unrealistic 6 week timescale over July and August: see bit.ly/2WpgfLb. The consultation raises some huge public law/ constitutional issues. 1. The power under s.6(5A) EUWA 2018 as inserted by EUWaGA was hugely controversial and was one of the areas that attracted most debate. To hurry the consultation through in 6 weeks at the worst time of the year (July is legal chaos, August dead) is most unsatisfactory.

Coronavirus Regs Update: Reading through the new Regs these are my takeaways.

1. The New No.2 Regulations are a repeal and rewrite of what went before. The provisions on what businesses are permitted etc have been redrafted from scratch as have the provisions on gatherings. 2. The gatherings provisions have been rewritten in such a way as to make reference to and consideration of Govt guidance mandatory when considering reasonableness. This is much clearer in legal architecture but, given the plethora of guidance, far, far more onerous.

We have just been arguing about that in Court today. EU SS has a different scope to Art 15 WA right of permanent residence (which is modelled on Art 16/17 of the Citizen's Rights Directive) - it is in fact more generous because there is no need to "legally reside" 1/2

https://twitter.com/StevePeers/status/1230176934182686721

Legal residence under Art 16/17 means "residence in accordance with the CRD" i.e. exercising EU free movement rights. EU SS as a domestic right is available for simple continuous residence (whether exercising EU rights or not). And anyone with EU SS gets social assistance 2/3

Great piece Kenneth. Isn't Section 1A as substituted a giant pretence/piece of window dressing. The truth is that politically we leave the EU when the WA is concluded; but legally (EU law as a supreme source) we do not leave until Dec 2020 at the earliest. 1/2

https://twitter.com/ProfKAArmstrong/status/1186669142423855105

2/2 Until Dec 2020 EU law - whether per legislator or CJEU - has precisely the same supreme and directly effective status it has now, with a longer tail of similar effects for certain areas: citizen rights, NI Protocol, pre Dec 2020 references etc.

Great thread George. Put it altogether in a blog please! I think the WA Act will at the very least need to change ‘exit day’ (better done by Act than Regs); and it will need to change a fair bit of EUWA architecture (eg s.6) to fit with continued CJEU role, provisions on FM etc.

https://twitter.com/GeorgePeretzQC/status/1183287089271574528

We could probably get by with a skinny first WA Act with more detail to follow.

The first two points (which run into each other somewhat) are obviously substantive: vires under s.23(1) (which as per previous PLP case the Court will police strictly) and implied repeal (if vires otherwise wide enough). These are killer points IMO.

https://twitter.com/AdamJTucker/status/1177865594802200576

The sift/scrutiny points are also interesting as there are material differences in the provisions for s.23 Regs. In no circs is there mandatory affirmatives; as you point out SI Cmtee recommendations can be ignored; and there are no 28 day sunset provisions.