Northern Ireland protocol: what is the ‘doctrine
of necessity’?
The UK government hopes a little-known legal principle
will overturn parts of the post-Brexit agreement
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Aubrey
Allegretti
@breeallegretti
Mon 13 Jun
2022 20.44 BST
In
justifying its attempt to unilaterally overturn parts of the post-Brexit
agreement with the EU, the UK government has invoked a little-known legal
principle known as the “doctrine of necessity”. The loophole is allowed by the
UN’s International Law Commission to be used by a state facing “grave and
imminent peril”.
But the
government’s ex-legal adviser Jonathan Jones said the EU would find the use of
the doctrine “completely unpersuasive”.
He said
Brussels would “understandably” take the UK’s unilateral decision to be a clear
breach of the withdrawal agreement, which was passed by parliament days after
Boris Johnson’s landslide election win in December 2019.
On Monday,
Liz Truss, the foreign secretary, published a bill designed to hand the
government powers to neutralise parts of the protocol on customs rules, state
aid and the jurisdiction of the European court of justice.
Jones, who
quit as head of the government legal department in November 2020, told Sky News
that to invoke such an argument required “an incredibly high threshold” but the
government’s reasoning was “very thin”.
He argued
that the EU would view the move as “a very hostile act” tantamount to the UK
“taking an axe to the withdrawal agreement” – of which the protocol was a
significant part, ensuring no hard border on the island of Ireland but
effectively creating a customs border down the Irish sea on goods travelling
between it and Great Britain.
“I have no
doubt the EU will bring a legal challenge,” Jones said. But he added the UK
appeared to be “seeking to undo the role of the European court itself so it’s
very unclear whether it will even cooperate with any legal action or dispute
resolution proceedings that the EU may bring, so I think we’re in for a very,
very tangled episode following this bill.”
The bill is
likely to face staunch opposition from some Tory MPs when it is voted on, and
even stronger pushback in the House of Lords.
Dominic
Grieve, a former Conservative attorney general, said the government’s legal
argument was “difficult to follow in all the circumstances, given the way the
protocol was put together”.
Mark
Elliot, a professor of public law and chair of the faculty of law at the
University of Cambridge, also believed there had been a clear breach of the
withdrawal agreement by exempting parts of the protocol from it.
He pointed
out the International Law Commission precluded a state from being able to use
the “doctrine of necessity” defence if it had “contributed to the situation of
necessity”.
Elliot
added: “In the light of those requirements, it seems to me very difficult to
argue that there is a situation in which the international law doctrine of
necessity applies.”
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Labour
similarly disputed one of the government’s main arguments. Emily Thornberry, the
shadow attorney general, said: “This is complete and utter nonsense. The
doctrine of necessity relies on grave and immediate peril. Boris Johnson’s
career may be in peril but it doesn’t seem to apply otherwise.”
The Foreign
Office insisted it was a legitimate argument. “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 said in a statement.
“The strain
that the arrangements under the protocol are placing on institutions in
Northern Ireland, and more generally on sociopolitical conditions, has reached
the point where the government has no other way of safeguarding the essential
interests at stake than through the adoption of the legislative solution that
is being proposed.
“There is,
therefore, clear evidence of a state of necessity to which the government must
respond to.”
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