The Northern Ireland Protocol Bill, introduced to parliament this week by foreign secretary Liz Truss, is drafted in a very curious way. Clause 2 provides that specified provisions of the protocol will not apply in the UK. The bill also purports to remove the jurisdiction of the Court of Justice of the European Union. But, perhaps because the drafting is so technical, clause 1 provides an easy-read summary of the entire bill. It is not clear what effect this would have in law.

Joshua Rozenberg

Joshua Rozenberg

The bill will have no legal effect, of course, unless it is passed by MPs and peers. In a letter to The Times, Professor Mark Elliott, Lord Anderson of Ipswich QC and Lord Pannick said they hoped parliament would ‘refuse to be complicit’ in the bill because it was a ‘clear breach of international law’.

Before we examine the government’s defence, let us consider why ministers thought the bill was necessary. After all, article 16 of the protocol already lets the UK introduce temporary ‘safeguard measures’ to protect its economy or society.

Little surprise, then, that Elliott, Anderson and Pannick should question the government’s commitment to the rule of law and a rules-based international order

In a summary of its legal position published on Monday, the government notes correctly that these ‘safeguard measures must be limited to what is strictly necessary to remedy the situation, with priority given to those measures that least disturb the functioning of the protocol’. But it does not explain why it is simply keeping article 16 in reserve.

‘This route is a possibility but an uncertain one,’ Sir Robert Buckland suggested this week. Writing for Conservative Home, the former lord chancellor said the problems of the protocol were significant and the necessary changes would require both stability and certainty.

Crucially, article 16 is not a derogation clause. Nor does it provide for renegotiation. And temporary safeguards would not secure the government’s political objectives. Indeed, the bill itself may not be enough to persuade Northern Ireland’s Democratic Unionist Party to allow the formation of a power-sharing government.

So the government is relying instead on the doctrine of necessity. Lawyers agree that this provision of customary international law was effectively codified in a draft published by the International Law Commission in 2001. As ministers accept, the doctrine justifies the non-performance of international obligations only under ‘certain exceptional and limited conditions’. But the government chose not to set these out.

So let us look at article 25 of the 2001 draft. ‘Necessity may not be invoked’ it says, unless the breach of an international obligation ‘is the only way for the state to safeguard an essential interest against a grave and imminent peril’.

An example given is the UK’s decision in 1967 to bomb the Torrey Canyon, a Liberian oil tanker which went aground just outside British territorial waters. Setting fire to the remaining oil helped limit the environmental disaster.

The draft includes other conditions. Acts taken must not seriously impair essential interests of other states – in this case, presumably Ireland and the rest of the EU. And, ‘in any case, necessity may not be invoked by a state as a ground for precluding wrongfulness if… the state has contributed to the situation of necessity’.

In its defence, the government asserts that ‘the legislation will not seriously impair an essential interest of the state or states towards which the obligations exist, or of the international community as a whole’. It also claims that ‘the UK has not contributed to the situation of necessity relied upon. The UK exercised its sovereign choice to leave the EU single market and customs union and the peril that has emerged was not inherent in the protocol’s provisions’.

Elliott, Anderson and Pannick find this impossible to understand. ‘The government agreed the protocol with its eyes wide open, and it is not even now advancing the bill on an urgent basis: indeed, it is telling the DUP that progress on the bill is dependent on the restoration of power-sharing.’

Also this week, we saw the prime minister suggesting that lawyers representing migrants were ‘abetting the work of criminal gangs’. Lord Reed of Allermuir, president of the Supreme Court, observed that lawyers representing an asylum-seeker challenging removal to Rwanda were ‘performing their proper function of ensuring that their clients are not subjected to unlawful treatment at the hands of the government’.

The UK courts accepted assurances that the asylum seekers would be brought back from Rwanda if the government’s policy was found to be unlawful. But the European Court of Human Rights has no jurisdiction over Rwanda and issued what amounts to an injunction. One Conservative MP called on parliament to take unilateral action against that court too.

Little surprise, then, that Elliott, Anderson and Pannick should question the government’s commitment to the rule of law and a rules-based international order. Just imagine what would have happened if the English courts had ruled against the government too.

joshua@rozenberg.net