Grave and imminent peril
It did not take us very long to see through the government’s attempt to explain why the Northern Ireland Protocol Bill, introduced to parliament yesterday by the foreign secretary Liz Truss, would not breach international law:
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… 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.
It makes no sense — whatsoever — for the government to race to seeking to rely on the principle of “necessity” under international law for breaching the protocol without triggering the Article 16 process first…
So “necessary” is this proposal that the legislation will take at least months, if not a year to pass into statute.
Such a leisurely timeline does not indicate urgency — and it does not show that the problem is “grave and imminent”.
Sir Jonathan Jones QC (hon), the former government lawyer who resigned over this issue, was similarly unimpressed when interviewed on The World Tonight.
Prof Mark Elliott, chair of the law faculty at Cambridge, says modestly:
Since I am not an international lawyer, I will venture no firm opinion on whether the bar of necessity, as it is understood in this context, is cleared by the UK government’s arguments concerning Northern Ireland. It does, however, appear highly doubtful — and that is putting it mildly — whether the “grave and imminent peril test” is satisfied. Moreover, although the government contends that “the UK has not contributed to the situation of necessity relied upon” because (it says) “the peril that has emerged was not inherent in the protocol’s provisions”, it is clearly arguable that by agreeing to the protocol, which is being applied by the EU according to its terms, the UK was the author of the situation of which it now complains.
Not surprisingly, the EU does not accept the UK’s defence of necessity and plans to challenge it in the courts.
Update 17 June: my column on this is in today’s Law Society Gazette.
And the Bingham Centre for the Rule of Law has now published a detailed report. It concludes:
In the absence of justification, the bill, as the government accepts, breaches the UK's international obligations under the Northern Ireland protocol. Parliament ought not to be complicit in such direct breaches of international law and should refuse the Bill a second reading.
Thank you for succinctly setting forth the actual position.
As I listened to Simon Coventry followed by Liz Truss, I felt like I was in two parallel universes.
As an Irish citizen living in the UK, I have long despaired of the casual ignorance from government ministers regarding the North, but this blatant disregard is new.