Tuesday 14 June 2022

Necessity and invention in Northern Ireland

After a lot of internal cabinet argument and delay, the government finally got round to publishing the Northern Ireland Protocol bill yesterday afternoon. To suggest it was met with anger and derision in almost equal measure would be quite an understatement. Legal commentators lined up to bury it. As far as I could see nobody, not just respected legal minds of considerable standing, but nobody at all outside this tawdry government thinks it will ever work. Johnson is making the entire government look incomparably stupid.

On Sunday the hapless and hopeless Northern Ireland secretary Brandon Lewis (has there ever been such a stooge in cabinet?) told us the bill would be legal and would not break international law.

This is different to the Internal Market Bill last year which the government admitted DID break international law although in a “limited and specific” way. Now they are using the legal principle of ‘necessity’ to argue that this gives them the right to override international law without actually breaking it.

Nobody seems to believe that is true. The whole thing looks like an unholy mess.

You can find the bill itself HERE, the explanatory notes HERE, the policy paper  behind it HERE and an explanation of the government's legal 'position' HERE.  This is all courtesy of Anton Spisak from The Tony Blair Institute by the way.

I note a government spokesman, according to The Guardian, has said they accept the bill if passed would mean it "did not meet its obligations under international law" but presumably in a 'legal and specific' way?

The bill more or less demolishes the NI protocol but claims the legal cover of ‘necessity’ as the reason it has no other choice.

This doctrine of necessity is set out in the position paper as follows:

“The doctrine of necessity provides a clear basis in international law to justify the non-performance of international obligations under certain exceptional and limited conditions. It has been accepted by the International Court of Justice and is reflected in the International Law Commission’s 2001 Articles on State Responsibility, which successive UK governments have regarded as generally reflective of customary international law. By way of summary, the term ‘necessity’ is used in international law to lawfully justify situations where the only way a State can safeguard an essential interest is the non-performance of another international obligation.”

The best explanation of the problems with it is in David Allen Green's blog post which you can see HERE. He quotes from a Twitter thread by Lord Anderson of Ipswich KBE QC, cross-bench peer; barrister and visiting Professor of law at Kings College, to set out the hurdles to getting the principle of 'necessity' accepted by a court. These are: 

  •  the State’s act is to safeguard an essential interest against a peril
  •  the peril shall be grave and imminent
  •  the course of action followed shall be the only way available; and
  •  no other essential interest shall be seriously impaired as a result of the breach.

Anderson also says the excuse is "unavailable where the State has (substantially) contributed to the situation of necessity."

Nobody thinks the situation in NI is grave and imminent or that suspending the protocol is the ONLY way available or that no other essential interests would not be impaired if it went ahead and in any case the government has substantially contributed to the problem so the whole doctrine falls at the first hurdle.

The UK hasn't even triggered Article 16 so it can hardly say there are no other solutions below the nuclear option that it could use. 

As expected, EU Vice President Maros Sefcovic made a statement which had what I think is a key passage:

“The European Commission recalls that the conclusion of the Withdrawal Agreement was a pre-condition for the negotiation of the Trade and Cooperation Agreement. Today's decision by the UK government undermines the trust that is necessary for bilateral EU-UK cooperation within the framework of the Trade and Cooperation Agreement.”

Does this sound like a threat? Sefcovic seems to be specifically linking the the Withdrawal Agreement as being a ‘pre-condition’ of the trade agreement. It looks like a warning shot that the TCA - or the parts of it that least impact the EU and most impact the UK - could be suspended. Johnson is playing a very dangerous game.

The EU are expected to take a low key approach at the start to try and avoid a trade war. It’s instructive that Britain makes all the belligerent noises but is weak, while the EU speaks softly but carries a very big stick indeed.

Sir Jonathan Jones, former head of the UK government legal service - who resigned over Johnson’s earlier handling of the Northern Ireland issue - said the new bill was “completely extraordinary” and “at the extreme end of anything we might have expected”

Lots of legal commentators are pointing to the wide ranging powers being given to ministers to do virtually anything including scrapping primary legislation, using so-called Henry VIII powers.

The bill will achieve precisely nothing.

Domestic law cannot override international law in any case. Even if the law is eventually passed it won’t change Britain’s obligations under the NI protocol - an international and legally binding treaty - one jot. It’s hard to think of a more pointless activity.

Hardly anyone thinks parliament will pass it, businesses in NI have already described the 'dual regulatory' system (see section 7) as 'unworkable' and the DUP have already said they won't take part in power-sharing until it is passed!

And 52 of the 90 members of the Stormont Assembly have now signed a letter "resolutely" opposing the "reckless bill."

There has clearly been some work done behind the scenes in Washington since a US government spokesperson, asked if it will be a hinderance to the talks or chances of future trade deal, said: "I don't believe it will be."

Some people believer the UK government is reassuring the Americans that the Northern Ireland legislation is not intended to be used, and is just a way to focus the EU on renegotiation and getting the DUP on side. If so, it is bound to fail. The EU have again ruled out any renegotiation of the protocol and it is well known they never respond to blackmail.

It is an utter disaster.

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