17th June 2022
Over at the Financial Times I have done a video guided tour of the Northern Irish Protocol Bill, famed around the question of whether it is a breach of international law.
It is free-to-view and you can see it here.
Produced by the estimable Tom Hannen.
I am happy to respond to any sensible questions about the the video in the comments below.
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You have commented on Twitter about the peculiar nature of Clause 1 of the Bill. It also appears to be grammatically incompetent – something you chose not to mention when you read it out. Either an indefinite article has been omitted from sub-clauses (1) and (2) or else “provision” in both cases should be plural, in which case “does” should be “do”in both cases. The latter seems more probable.
The answer on this is that “provision” is defined later in the Act
But, yes, it does make the clause look inelegant
The draftsman missed a trick in clause 1(1): it should have provided that “certain limited and specific provision of the Northern Ireland Protocol does not have effect in the United Kingdom”
The Bill is stuffed full with new regulation-making powers. How often do we see something like clause 22(1), which makes provision down in the final provisions: “Regulations under this Act may make any provision that could be made by an Act of Parliament (including provision modifying this Act).”
Henry VIII would have been proud of that.
Truly excellent overview.
One question that arises from this is rather obvious:
Given that this government only recently signed up to the Northern Ireland Protocol and that it was this government that did so (as opposed to a predecessor-in-interest), could the relevant Minister please explain what, precisely has changed between the moment that the government willingly signed on to the Northern Ireland Protocol (at which time the government implicitly signalled a satisfaction with the Agreement) and this moment in time (where, implicitly, the government is indicating that it believes elements of the Agreement to be somehow unenforceable and therefore within this government’s ability to unilaterally disregard?
I’m not interested in their explanation of what they think today. I’m interested in their explanation as to what changed, and when, and how it changed, that made previously acceptable terms suddenly unacceptable.
I’m sure that the government would have taken Trumpian levels of precaution (nothing in writing, paper torn up and flushed down the lavatory), but I wonder what a FOIA request would turn up?
That is a question to which I can offer no answer
Excellent explainer video, thank you.
A very interesting video. Thank you.
What I am afraid I am failing to understand is the “so what” conclusion of the Bill (or even if its introduction) being in breach of “International Law”. Who sets “International Law” and what body adjudicates on possible breaches of it, and what sanctions do they have? And even if such a body existed, wouldn’t the UK simply ignore it? I get the impression that people like to bandy around “international law” without being clear what it actually is. And I’m afraid I am at risk of being guilty as charged!
In this case, the EU is already taking legal action which it would appear likely to win. However the UK government could simply ignore the verdict of the ECJ.
It is likely that the EU and, to a lessor extent, the USA would retaliate, probably by starting a trade war.
It is also worth remembering that the vast majority of the UK’s exports are services; and these services are mainly accountancy, finance and legal which all require a high level of trust and for international law to be followed.
Can the UK simultaneously be a pariah under international law and retain London’s place as an international centre for law and finance?
I would argue no.
Thank you. That’s helpful.
Excellent video, again cutting to the quick of this latest monstrous outrage by Her Majety’s Government (HMG) on the British public. It seems, to turn the old adage on its head, that “invention has become the mother of necessity”. There is no necessity. It is an invention. The Tories and DUP / UVF / UDA have tried hard to incite the economic, social and political unrest which invoking Article 16 could have engendered. They succeeded in getting out a few teenagers from the most sectarianised estates. We also have stats showing that NI alone in UK (apart from London) is thriving, and it is clearly as a result of the NIP.
The EU went to NI and listened to the issues and addressed them as best it could. London has done absolutely nothing except to try to undermine the NIP.
The grossest claim of all is that the NIP has be amended in order to protect the Good Friday (Belfast) Agreement (GFA). The DUP and Tory politicians, and Gove in particular, opposed and voted against the GFA at every turn. Indeed, Donaldson and a number of now leading DUP politicians, joined the DUP because the UUP was not sufficiently belligerent in its opposition to the GFA.
At every stage, mendacity, cynicism and naked expediency have governed Johnson’ approach to the NIP and NI. But then NI has always been Brexit’s Achilles’ heel, the square that cannot be circled. Sefcovic, a very intelligent and cultured Slovak, a small, mountainous and proud country (I do business in Slovakia) has exhibited enormous patience with HMG. That patience must be wearing extremely thin. Another day to be ashamed of what HMG is doing in our name.
Very well observed. Thank you.
More from Lord Geist
https://www.bbc.co.uk/news/uk-politics-61847902
If necessity overrides that which has been written into law then I take it that I can drive drunk if my child is taken sick or my elderly mother has had a fall and needs A&E attention at midnight?
Necessity has long been known as the mother of invention; only the Johnson mob could reinvent it as the justification for illegal action.
Speeding while sober in order to take a dying relative to hospital because you have been told the ambulance won’t come for another hour is technically illegal, but I would not hesitate to do it.
(For the record, I have never been in that situation.)
Me neither. But if there is a defence of necessity, then the behaviour your describe – breaking the speed limit to take a gravely ill relative to hospital – is not illegal: that is, it is not a criminal offence – technically or otherwise.
This is the sort of extreme situation where the police may and probably should exercise their discretion – indeed, there are plenty of cases where police have escorted a vehicle carrying a person in dire medical need straight to hospital, with blue lights and sirens. If it got that far, there is a fair chance that the CPS would drop a prosecution, either because it is not worth taking to court as there is good chance of the accused establishing the defence of necessity, or because it is not in the public interest to proceed.
You can analyse self defence as an action of necessity, even if it results in the death of an assailant in circumstances which would otherwise be murder or manslaughter.
Necessity as a justification for breaching international obligations is somewhat different to necessity as a defence to a crime, although there are common factors – at bottom, is there an over-riding, immediate and pressing need to do something that would otherwise be prohibited.
Very interesting video – thank you. I am left wondering what happens now.
Parliament will take an age to put this into law, the EU will object as will the USA. The politicians and lawyers will spend say 18 months dancing the Blame Gavotte and then we will have an election. Which seems to me the whole ‘point’ of this exercise – to kick the can down the road. Something may turn up – who knows.
I think that there is another explanation, given that what you so adroitly outline is the case. It is that this bill, and its sibling ‘export people to Rwanda’ exercise, are simply extensions of the fairly-tale of Brexit. This time, they are acts of pantomime, not just Grim, but they serve to make their ‘base’ think that this is how Brexit is done and that those dreadful Europeans are still against us at every turn – a continuing justification to leave. Bearing in mind that the facts, when distilled from the brew that includes COVID and Putin, show negative outcomes, but we are not allowed to mention that.
So, from the story-tellers point of view, this all helps to fill the gap between now and the next election, whenever it is, with ‘righteous’ anger, whilst the readers of this blog and/or the FT (sadly a small group, in context of the electorate) don’t matter when it comes to casting votes in a GE.
I think you’re spot on. Beware the power of story-telling.
Thank you for the blog, very good and precise, as usual from you.
I have a question, rather than a comment: is there any remedy under UK or international law. other than retaliation from the EU?
Thank you
So very clear, thanks David, albeit further reason to despair!