Is the Northern Ireland Protocol bill a breach of international law?
The FT's legal commentator David Allen Green's guided tour of the Northern Ireland Protocol bill
Written and narrated by David Allen Green, produced by Tom Hannen
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Is the Northern Ireland Protocol bill a breach of international law? The government of the United Kingdom has introduced a bill into the United Kingdom parliament. If enacted by parliament, it will then become an Act of parliament, and thereby part of the law of the land.
But would that Act breach international law?
And is the introduction of the bill itself a breach of international law? Many say so.
So let's call a spade a spade. This is illegal.
Senior academics and independent members of the House of Lords have said it is a '"clear breach of international law.' A former head of the government legal service has said that even by bringing forward the bill, the United Kingdom has shown the world that it is prepared to walk away from important, recently-agreed treaty obligations on the flimsiest of pretexts.
And a senior Conservative member of parliament has said that breach of the Northern Irish protocol would be economically very damaging, politically foolhardy, and almost certainly illegal.
These are serious claims. To state that the government of the United Kingdom is in breach of international law or could be in breach of international law should not be made lightly.
Are these claims sound? The government says no. The government says what it is doing is lawful.
Previously, when the government had introduced similar legislation, the government had admitted openly and expressly in the House of Commons that it would break the law.
Yes, this does break international law in a very specific and limited way.
Now the government says that what it is proposing, which goes further than that last proposal, is not breaking the law at all. That it is entirely lawful to do what the government is proposing to do.
The foreign secretary, Elizabeth Truss, has said...
And we are acting within international law. And we will be publishing a legal statement later today to show that.
When the government published the bill they also published what they describe as its legal position, although not the full advice it has received on the legality of the bill. This legal position provides the basis of what the government contends is its legal justification. In a word, that legal justification is necessity.
As the position document sets out, the doctrine of necessity provides a clear basis in international law to justify the non-performance, or breach, of international obligations under certain exceptional and limited conditions.
The government recognises that necessity can only exceptionally be invoked to lawfully justify non-performance, or breach, of international obligations. This is a genuinely exceptional situation. And it is only in the challenging, complex, and unique circumstances of Northern Ireland that the government has reluctantly decided to introduce legislative measures which, on entry into force, envisage the non-performance, or breach, of certain obligations.
It is the government's position that in light of the state of necessity, any such non-performance, or breach, of its obligations contained in the withdrawal agreement or the protocol as a result of a planned legislative measures would be justified as a matter of international law.
This justification lasts as long as the underlying reasons for the state of necessity are present. The current assessment is that this situation and its causes will persist into the medium to long term.
So this government contends the bill is necessary. But what does the bill actually contain? What does the bill do? What is the purpose of this bill?
Well, the bill is the government's response to the Northern Ireland Protocol. That protocol is part of the withdrawal agreement which the United Kingdom and the European Union agreed when the United Kingdom departed the European Union. The protocol contains special provisions relating to Northern Ireland.
These special provisions of there because Ireland is still a member of the European Union and it is important to ensure that the island of Ireland does not have a hard border. The lack of this hard border is a fundamental part of the Good Friday Agreement.
The government of the United Kingdom does not like the Northern Ireland Protocol, which it negotiated and signed with the European Union. And the government wants that protocol to change, for it to be amended, not just implemented differently, but for it to say something different to what it says already. But the European Union does not want to amend the protocol.
This bill is the United kingdom's response to that situation. Legally, the bill when enacted, will provide powers for the United Kingdom government to ignore the Northern Ireland Protocol. Tactically, it would appear that the government wants to use this as leverage in negotiations to try and get the European Union to change its stance and be open to amending the protocol.
As such, this bill serves both a legal and a political tactical purpose. On the face of the bill, it is to make provision about the effect in domestic law of the protocol on Ireland, Northern Ireland in the EU Withdrawal agreement.
Clause One of the bill provides an introduction. This is where in legislation, but not absolutely unknown. And this introduction sets out an overview of the main provisions of this bill. It is to provide that certain provisions of the Northern Ireland Protocol do not have effect in the United Kingdom. And it is to give ministers of the Crown powers to provide that the other provision of the Northern Ireland Protocol does not have effect in the United Kingdom.
Clause One C even manages to expressly reference the Union with Ireland Act, 1800, and the Act of Union, 1800. There's no obvious reason for these two historical statutes to be mentioned expressly. And one suspects that this is done for political consumption rather than for any legal purpose.
But the rest of this bill certainly does provide that certain parts of the Northern Ireland Protocol will not have effect in the United Kingdom. And it certainly also provides for ministers by regulation to change parts of the Northern Ireland Protocol and its effects on Northern Ireland.
The Northern Ireland Protocol contains provisions for the rights of individuals, common travel area, customs territory of the United Kingdom, customs, movement of goods, protection of the UK internal market, technical regulations, assessments, registration, certificates, approvals and authorisations, VAT and excise, single electricity market, state aid, and other areas of North-South co-operation.
But the new bill provides all of these can be changed by regulation apart from three articles, the rights of individuals, common travel area, and other areas of north-south co-operation. Everything else can be subject to change by regulation made by British ministers.
Indeed, this 20-page bill provides 20 separate powers for ministers to make law by regulation. And these regulations are very powerful. Regulations under this Act may make any provision that can be made by an Act of parliament. This means that ministers, the Treasury, and HMRC are placed in a position of being parliaments themselves.
These provisions are extraordinarily wide. But are they necessary? The Northern Ireland Protocol contains, under Article 16, a provision where the United Kingdom and the European Union agreed a process for when there were difficulties within the Northern Ireland Protocol.
Both the United Kingdom and the European Union envisaged there being circumstances where there may be problems. And they agreed this is how those problems would be addressed, with the ability to take safeguarding measures when strictly necessary.
The United Kingdom government has threatened to trigger Article 16 a number of times. But it has not done so. It is difficult to understand how the United Kingdom can resort to introducing this bill as a necessary measure without first going through the Article 16 process.
The provisions of the bill, if enacted, would enable ministers by fiat to ignore parts of the Northern Ireland Protocol and relevant parts of the withdrawal agreement as they wish. Those would be breaches of the withdrawal agreement and of the protocol.
But even introducing this bill into parliament may itself be a breach of the withdrawal agreement. Article V of the withdrawal agreement provides for a duty of good faith. "Th European Union and the United Kingdom shall, in full mutual respect, and good faith assist each other in carrying out tasks which flow from this agreement. They shall take all appropriate measures of a general or particular to ensure fulfilment of the obligations arising from this agreement and shall refrain from any measures which could jeopardise the attainment of the objectives of this agreement.
Some have put forward the view that the introduction of this bill into parliament is a negotiation ploy, that there is no serious intent in actually passing the bill into law. All the bill is there for is to place pressure on the European Union so that they will agree to amending the Northern Ireland Protocol.
That view implies that there will not be any breach of law until the bill becomes an Act and the ministers get these powers to disregard parts of the withdrawal agreement and Northern Ireland Protocol as they wish. However, that view presupposes that the introduction of the bill itself is not a breach of the withdrawal agreement.
But as we have seen from the vice-president of the European Commission, the introduction of the bill is seen as a breach of the withdrawal agreement, in and of itself. There is no dispute that these provisions on the face of it would breach the Northern Ireland Protocol.
The only difference between the European Union and the United Kingdom is whether that breach, in turn, would be justified by the legal doctrine of necessity. But putting forward a bill with the widest possible powers and without first going through the very provision of the Northern Ireland Protocol, Article 16, which is there for this sort of dispute, suggests that there is not necessity here.
In addition, this legislation will take up to a year, perhaps more, to get onto the statute book. That does not indicate the urgency, the gravity, which comes with necessity. There is no case for necessity. And if that case falls aside, then there is no defence to the claim that this bill, even the introduction of this bill, is a breach of international law.