By Mark Elliott
Professor of Public Law, University of Cambridge
This post was originally published on the Public Law for Everyone blog on 13 June 2022.
Interviewed on LBC, Boris Johnson said that his Government was proposing to legislate in order to make ‘trivial’ changes to the Northern Ireland Protocol. In this post, I will explain what the planned legislation will do, why the changes are not ‘trivial’, why it is, in fact, legally impossible for the UK to make unilateral changes — trivial or otherwise — to the Protocol, and why the legislation will likely place the UK in breach of international law.
The Northern Ireland Protocol forms part of the Withdrawal Agreement between the United Kingdom and the European Union. The Protocol creates a special legal position for Northern Ireland in the light of its particular political circumstances, effectively enabling Northern Ireland to remain within the EU’s Single Market for goods. As a result, there is now, under the Protocol, a trade border between Great Britain and Northern Ireland, to provide for appropriate checks on goods entering Northern Ireland (and the Single Market, which the rest of the UK now sits outside). The UK Government argues that it is necessary to ‘fix’ certain practical problems that it perceives in relation to this arrangement, including ‘disruption and diversion of trade and significant costs and bureaucracy for business’. It therefore proposes the enactment of the Northern Ireland Protocol Bill.
What does the Bill do?
The Bill provides that many parts of the Protocol are to be treated as ‘excluded provisions’. I will get, in a moment, to what turns on something being an ‘excluded provision’ — but let me begin by outlining the areas of the Protocol will fall into that category under the Bill. The parts of the Protocol that are to be ‘excluded’ include provisions dealing with the movement of goods, including customs duties, between Great Britain and Northern Ireland (see clause 4) and subsidy control (or ‘state aid’) rules (clause 12). The Bill also treats as ‘excluded provisions’ any parts of the Protocol or the Withdrawal Agreement that confer jurisdiction on the Court of Justice of the European Union (CJEU) in relation to the Protocol or related provisions of the Withdrawal Agreement. Catherine Barnard has pointed out that this ‘drives a coach and horses through the Northern Ireland Protocol’.
The Bill goes on to give Ministers powers to make new domestic law, including in place of excluded provisions of the Protocol (clauses 5, 6 and 9), and allows Ministers to extend the definition of ‘excluded provisions’ (clause 15). The latter power can be used whenever a Minister considers that it is necessary to exclude additional parts of the Protocol for any of several ‘permitted purposes’, including ‘safeguarding social or economic stability in Northern Ireland’, ‘ensuring the effective flow of trade between Northern Ireland and another part of the United Kingdom’, ‘safeguarding the territorial or constitutional integrity of the United Kingdom’ and ‘lessening, eliminating or avoiding difference between tax or customs duties in Northern Ireland and Great Britain’. So: significant parts of the Protocol count as ‘excluded provisions’, and Minsters can widen that category under powers granted by the Bill.
What turns on this? Why does it matter that significant parts of the Protocol will constitute ‘excluded provisions’ under the Bill? Here, we must turn to clause 2 of the Bill, which forms its conceptual heart. But before doing so, some background is needed. Article 4 of the Withdrawal Agreement explicitly requires the UK to give effect to the Agreement, including the Protocol, in a way that secures for it domestic effect analogous to that enjoyed by EU Law pre-Brexit. This means that relevant parts of the Agreement and Protocol must be given direct effect in and primacy over UK law, just as EU Law had primacy and direct effect before Brexit. That obligation, set out clearly in Article 4 of the Withdrawal Agreement, is currently implemented by section 7A of the European Union (Withdrawal) Act 2018 (EUWA).
However — and now we reach the really critical point — clause 2 of the Northern Ireland Protocol Bill says that section 7A(2) of the EUWA — the key operational part of s 7A — does not apply to ‘excluded provisions’. This, in turn, makes it lawful, as a matter of domestic law, to deviate from, ignore and enact new domestic legislation in place of relevant provisions of the Protocol. In addition, clause 20 says that domestic courts, in legal proceedings that relate to the Protocol, are not bound by any principles laid down or decisions made by the CJEU.
The position is therefore clear: on its face, the Northern Ireland Protocol Bill is flatly inconsistent with legal obligations the UK freely and willingly entered into as recently as 2019. In particular, clause 2 of the Bill repudiates the obligation in Article 4 of the Withdrawal Agreement to accord direct legal effect and primacy to relevant parts of the Agreement (including the Protocol) in domestic law, while clause 20 runs counter to the requirement (also in Article 4 of the Agreement) for UK courts and tribunals to ‘have due regard’ to relevant CJEU case law in cases concerning the application and interpretation of the Agreement (including the Protocol).
Does the Bill breach international law?
All of that seems to me unarguable. The question therefore arises: how on earth can Government Ministers claim, as they have repeatedly done in recent days, that all of this is perfectly lawful? In considering this issue, it is important to remember two fundamental principles. The first is that, although the UK Parliament is sovereign, meaning that it can enact any domestic law it wishes (including a law like the Northern Ireland Protocol Bill), that does not enable the UK to evade its treaty obligations as a matter of international law. Second, the extent to which any State, including the UK, is bound by its treaty obligations as a matter of international law is necessarily governed by international law. In particular, Article 26 of the Vienna Convention on the Law of Treaties stipulates that ‘[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith’ while Article 27 provides that ‘[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’.
These fundamental principles notwithstanding, the UK Government says that the Northern Ireland Protocol Bill will result in no breach of international law. In making this argument, the Government refers in passing to Article 16 of the Withdrawal Agreement, which says that ‘safeguard measures’ can be taken unilaterally by the UK (or the EU) ‘[i]f the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade’. But such measures must be ‘restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation’ — tests that the wide-ranging and potentially open-ended deviations from the Protocol provided for by the Bill may well struggle to meet. It appears, therefore, that the Government does not (at least at present) intend to rely on the safety valve mechanism contained in Article 16, because the limitations to which it is subject would not enable it to drive its desired ‘coach and horses’ through the Northern Ireland Protocol. Instead, the UK Government seeks to rely on an altogether broader — indeed, quite breath-taking — argument.
It does so by invoking the international law doctrine of necessity. In certain — very limited — circumstances, this doctrine provides a legal justification for the non-performance by a State of an international legal obligation. In contending that the doctrine of necessity would justify disregard of parts of the Protocol, the Government cites ‘diversion of trade and serious societal and economic difficulties occasioned by the Protocol’ and ‘the strain that the arrangements under the Protocol are placing on institutions in Northern Ireland’.
The Government concludes that the Bill ‘is currently the only way to provide the means to alleviate the socio-political conditions, while continuing to support the Protocol’s objectives, including supporting North-South trade and cooperation, and the interests of both the EU and the UK’. It continues: ‘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 of certain obligations.’
But does this satisfy the requirements of the international law doctrine of necessity? In its purported legal justification, the Government relies on the International Law Commission’s Draft Articles of State Responsibility, Article 25 of which says that the doctrine only applies to wrongful acts by States if the act ‘is the only way for the State to safeguard an essential interest against a grave and imminent peril’ and ‘does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole’. Article 25 goes on to say that a State cannot invoke the doctrine of necessity if ‘the State has contributed to the situation of necessity’.
The bar, therefore, is extremely high: as the International Law Commission itself points out in its commentary on the Draft Articles, the term ‘necessity’ is used in Article 25 to signify that the doctrine applies only in ‘exceptional cases’. It notes that ‘[t]he plea of necessity is exceptional in a number of respects’, and that the plea can be made only when there is ‘an irreconcilable conflict between an essential interest on the one hand and an obligation of the State invoking necessity on the other’. This means that necessity ‘will only rarely be available to excuse non-performance of an obligation’.
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. That would mean, in turn, that the UK would have contributed to the state of necessity, thereby undermining its plea of necessity in international law. Indeed, the impact assessment for the European Union (Withdrawal Agreement) Bill rather suggests that the UK Government went into all of this with its eyes wide open, as does a leaked Treasury document which recognised that ‘customs declarations and documentary and physical checks’ at the new trade border between Great Britain and Northern Ireland ‘will be highly disruptive to the [Northern Ireland] economy’.
It went on to note that the vast majority of companies that export from Northern Ireland to Great Britain ‘are likely to struggle to bear [the relevant] cost’, that ‘business profitability’ would be affected, and that ‘key employment sectors’ were ‘likely to be hit’. Against this background, the notion that, as the UK Government now maintains, some expected and unforeseen ‘peril’ has arisen seems positively risible, thus suggesting not only that the UK has contributed to the situation about which it now complains, but that the situation that has eventuated is one that it could have predicted and did in fact predict.
Where, then, does this leave us? The Government appears implicitly to concede that, unless it can justify deviating from the Protocol under Article 16 of the Withdrawal Agreement or the doctrine of necessity, the Bill will place the UK in breach of its clear treaty obligations. It would be an understatement to say that the Government would face an uphill struggle in seeking to satisfy a court that the Bill could be justified by reference to necessity, for reasons considered above, while the Government itself seems to concede that Article 16 is too limited a vehicle for the extraordinarily wide-ranging deviation from the Protocol that is now envisaged.
Of course, the Bill might never be enacted or brought into force, and the legal niceties might well never be tested. The threat — for that is, ultimately, what it is — to disregard the Protocol and, with it, binding international obligations may be no more than a negotiating position. But we should be careful not to draw false comfort from such a possibility. By announcing its intention to enact this legislation, and by accompanying it with a ‘legal justification’ that engenders ridicule, the Government has once again signalled its willingness to play fast and loose with the rule of law and its commitment to a rules-based international order. In doing so, it cedes moral authority, casts doubt on its reliability as a treaty partner — including in any future trade negotiations — and invites other States to plead political convenience masquerading as ‘necessity’ in order to justify reneging on treaty obligations.