28th June 2022
One of the most fundamental distinctions in legal practice is that between law and evidence.
Anybody can assert “[X] is guilty of murder” or “[Y] had broken a contract” but mere assertion is not enough for a court.
A court will need to see and assess the evidence that [X] is guilty of murder or [Y] had broken a contract.
And it is only when the evidence is applied to the law, and the law applied to the evidence, that a court will hold (or not hold) [X] to be a murderer or [Y] to be in breach of contract.
Mere assertion is not enough.
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Yesterday in the House of Commons the Foreign Secretary asserted that that the proposed Northern Irish Protocol Bill was ‘necessary’.
The asserted ‘necessity’ justified, the minister claimed, the legislation being brought forward.
Legislation that on the face of it is a breach of international law – and can only only be saved from being such a breach by the doctrine of ‘necessity’.
But.
It is one thing to assert that a thing is the case, and another to show that it is the case.
And so it is with the use of “necessity” by this government to justify bringing forward this otherwise law-breaking bill.
It is not enough for the government to tell us it is “necessary” – they need to show it.
As any competent screenwriter would tell you: show, don’t tell.
One government backbencher, Sir Bob Neill, asked about the evidence which supported the government’s position:
“To return to the legal point, she will know that the application of the doctrine of necessity requires both the legal tests to be met and the evidential base to be there, because it is largely fact-specific to show whether those tests have been met. I know that the Government have been working hard to assemble that evidential base, but can she tell us when it will be available to the House so that we can form a judgment as to whether those legal tests are met and, therefore, proportionality and necessity are met? It would be helpful to have that before we come to a conclusion on the Bill.”
NB the number of times that @SuellaBraverman’s hapless “legal position” relies on claims that the current government has “assessed” without once explaining what that “assessment” is based on.
— George Peretz KC 🇺🇦 (@GeorgePeretzKC) June 27, 2022
The Foreign Secretary’s response indicated she had missed the point:
“I thank my hon. Friend for that point. There are clearly very severe issues in Northern Ireland, including the fact that its institutions are not up and running, which mean that the UK has to act and cannot allow the situation to drift. I do not think that we have heard what the Opposition’s alternative would be, apart from simply hoping that the EU might suddenly negotiate or come up with a new outcome.”
It is not enough to ask the opposition about what they will do – it is for the government to make out the necessity.
And it is not enough for her to assert that there are “clearly very severe issues” – and as this blog has said before many times, anything described by a politician as “clear” tends not to be.
Neill also asked this question of a former Lord Chancellor, Robert Buckland:
“He refers to the doctrine of necessity and the tests that must be met. I think he will agree that, whether it be imminent or emerging, there has to be evidence that the high threshold is met. Does he think that, in common with the approach adopted in the United Kingdom Internal Market Bill, if there is evidence so pressing as to justify a departure from an international agreement, with the risks that that involves, it should be brought back to this place for the House to decide in a vote? As was then suggested in that Bill, on the evidence available, there should be a parliamentary lock on the use of that important step.”
The former Lord Chancellor also did not have a clue:
“My point is simply that this is not a matter of law or a question of legality. There is a respectable argument that can be deployed by the British Government to assert necessity, but this is not about the law; it is about the evidence that the Government will need to marshal to demonstrate that point. The Government’s responsibility is to be a good steward of the Good Friday/Belfast agreement.”
And the former Lord Chancellor also said:
“…a lot has been said about necessity, as if it requires imminent peril or an immediate threat facing us just outside the door. Nobody is saying that we face that, but necessity in this context does not require that degree of imminence; it requires a degree of real threat, and growing evidence of a real threat to our essential interests.
“I would argue that there is such growing evidence. Clearly north-south is entirely unaffected—the respect we are showing for the single market is clear—but there is a growing problem when it comes to east-west.”
Buckland asserts there is “growing evidence” but – other than broad generalisations – he cannot point to any.
This is not impressive.
Neill’s comment that there are those in government putting together an evidence base for saying that the bill is “necessary” may be well-informed or it may be, well, charitable.
But it can only be right that the evidence for necessity be made available to Members of Parliament before this bill is passed.
Neill has now put down an amendment for the next stage of the bill’s passage which will require there to be a dedicated vote in the House of Commons before the powers in the bill can be used.
This would mean that a minister would have to come to he House of Commons to make a positive and specific case of necessity before the powers in the bill could be replied upon on the basis of “necessity”.
It would be a wise provision – and there cannot be a good argument against it in the circumstances (though there will be plenty of bad ones).
Strangely, the strongest criticism of the bill in yesterday’s debate came from Theresa May, in a speech that nobody following this blog could have put better – read it in full here.
Of course, this is the same Theresa May whose fateful decisions after the referendum to rule out membership of the single market and customs union led directly to the current botched Brexit.
(And, yes, it it tempting to keep re-fighting the battles of 2016, like a military re-enactment society.)
But here May is spot-on.
It is disappointing, of course, that Neill, May and other government backbenchers did not vote against the principle of the bill at the reading yesterday.
This, however, may owe to the logistics of the exercise of amending the bill at the next stage – they are keeping their various powders dry.
What is obvious, however, is that the government cannot – as of yet – make out the evidence base for “necessity”.
If the Neill amendment is adopted, ministers may be required to put forward their evidence base, if they have one.
And if they cannot put forward the evidence base, then ministers may not be able to rely on necessity.
Their bluff would be called.
And sometimes it is, well, necessary to call the bluff of ministers.
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I am very sorry that the first published version of this post had some horrible formatting problems, which I have now debugged by going through the HTML line-by-line.
Blame the Hansard website for the alien intruder.
Opponents of the Protocol (many of whom were previously strong supporters of it) seem to have latched on to issues around availability of kosher produce in Northern Ireland.
I’ve not seen any mention of the same issues in the rest of Ireland although perhaps it is not just being as well publicised.
It seems either the protocol is creating a genuine problem either side of the border or some other remedy must be available. Will be interesting to see the full evidence base.
https://www.jewishgen.org/jcr-uk/ireland.htm
Thanks for raising this, Kevin. I had not heard this was a concern.
It seems there were problems in the south, in continuing to source kosher products from GB, so as you might expect they sought new suppliers elsewhere in the EU: in France, the Netherlands, etc.
According to this recent report – https://www.irishtimes.com/ireland/2022/05/28/it-is-a-nonsense-how-brexit-disrupted-jewish-food-supplies-to-ireland/ – the Jewish community in the south of Ireland is small – around 2,500 people, mostly around Dublin – and in the north is even smaller, only 65 in Belfast, and mostly elderly (for context, Northern Ireland has a population of about 1.9 million, with about 7 million in the south) but I would hope it should be possible to arrange supplies of kosher food to the north from the south if it has become too difficult or too expensive to arrange them from GB.
The South has just over 5 million, not 7.
https://www.bbc.com/news/uk-northern-ireland-61910927
Thank you for correcting my error. Apologies for any confusion. Indeed, about 7 million for the whole island of Ireland – about 1.9 million in the north and about 5.1 million in the south.
Again, for context, the UK has a population of about 67 million, with around 300,000 to 400,000 Jewish people, depending on which definition you use. That is around 4 and 6 in 1000. Proportionately about a tenth of that in the south of Ireland, and less than a hundredth in the north.
Unless my maths have gone completely wrong, 74 Conservative MPs did not vote for the Bill and 38 Labour MPs did not vote against. If all the Labour MPs were paired, this suggests 36 abstentions.
1 LibDem and 9 SNP MPs did not vote, and all the DUP MPs voted for the Bill.
On this basis, even if every Conservative MP who was opposed actually voted against Second Reading and all the absentees had joined them, the Bill would still have received its Second Reading. An agreement to abstain may have been sensible to avoid the government being able to claim it had seen potential rebels off. There are some who voted for Second Reading who may develop a backbone by Third Reading – e.g. Damian Green
It may be that by Third Reading opinion will have hardened against the Bill but otherwise the battle will be in the Lords.
The Parliament Act only allows the passage of a Bill in the exact form in which it left the Commons the first time round, so one problem the government may face is that it cannot amend the bill the second time round (and amendments in the Lords the first time round cannot be included the second time round) . This prevented the Asquith government giving effect to the exclusion of Ulster in the summer of 1914.
Excellent post, as always.
The government talks about obvious and severe the issues with the protocol are. It is worth reflecting that only a matter of weeks ago there was an election in Northern Ireland. In that election, a clear majority of people voted to elect a clear majority of representatives who support the protocol.
It is almost as if this urgent crisis was a figment of the government’s imagination.
Yes, well put. And support for the Protocol is rising rather than declining. according to the latest opinion survey. See https://www.belfastlive.co.uk/news/northern-ireland/brexit-support-northern-ireland-protocol-24345009
Not that the government will care one jot, since none of this is about the interests or welfare of anyone in Northern Ireland.
It seems to me that the question of “necessity” inherently requires a theory of counterfactuals: what will happen if the action said to be necessary isn’t taken. There is room for disagreement about that, because it is after all a theory.
How can any actual “evidence base” discriminate between multiple differing theories of the counterfactual? In other words, if the government were “found to have broken international law” in taking a step said by them to be necessary, wouldn’t the Court have to be applying it’s own theory of the counterfactual, which would *necessarily* have to be a conjecture ?
Buckland’s contribution is extraordinary. “a lot has been said about necessity, as if it requires imminent peril”
Well, that is exactly what “necessity” entails, according to Article 25 of the International Law Commission’s 2001 draft articles on Responsibility of States for Internationally Wrongful Acts (as I understand it, these draft articles encapsulate the position under customary international law, but have not been formalised in an international treaty or convention).
To quote: “1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act: (a) is the only way for the State to safeguard an essential interest against a grave and imminent peril; …”
The sense of an “emerging threat” does not appear there at all. It may not mean “immediate” (as in “happening right now”) but it certainly means “about to happen”.
Open to correction here but I cannot see how any necessity case can be made out when the government has not tried the very mechanism provided for in the Protocol itself – that is, Article 16.
They may argue that there was no likelihood of Art 16 resolving whatever the issues (real or supposed) are but they cannot know unless the Article route has been actually tried.
Interestingly, it is in the Lords that real debate is taking place. My opinion of the Lords has recently skyrocketed, having watched a number of sessions.
There was genuine fury from all sides directed at the hapless Gov spokesman about the NI Bill and he could only parrot the Gov party line of the Bill’s legality. Hansard, the Lords say, has a record of the Gov promising to make available the document providing supporting evidence for the Bill’s legality. Their Lordships have demanded – so far in vain – to see the document.
In relation to your aside about re-enactment societies: I suppose the potential issue with such a depiction of 2016 may be that the Cavalier & the Parliamentarian might find themselves on the same side?
They could always take up arms against a joint force of Union & Confederacy…?
It strikes me that this might appear by some to be a particularly noisy blog. It would be a bit of a shame, etc.
Northern Ireland was without an assembly for approximately three years in the so called “cash for ash”scandal. That is a somewhat longer timeframe than the current three months.
Interesting question…. If (okay it’s a big if) the current bill passes even with amendments, are there any guarantees that the DUP will return to take their place in the assembly? And perhaps more interesting if they did, would those parties opposed to changing the protocol refuse to attend!???
The DUP have made no commitment to returning, unless they are content that the proposed Bill has been fully enacted. Given the serious objections to the Bill, particularly in the Lords, it may not become law for a couple of years – if at all.
Setting aside the breaking of an International Treaty; the damage to our reputation globally, and the profound lack of trust in the UK’s integrity, we have to ask ourselves whether we are prepared to allow eight reactionary MPs to hold us to ransom.
It is a bitter irony that the Conservative and Unionist Party will probably be responsible for precipitating the collapse of the Union.
And I haven’t even started on the damage to the GFA…..
But what if the government defeats the Neill amendment? And what happens, if after a round of parliamentary’ping pong’, the lords give way, as they nearly always do?
This bill will get through, sadly.
[/]*”If the Neill amendment is adopted, ministers may be required to put forward their evidence base, if they have one.”[/]
The waffle-maker will produce yet more waffle, albeit new, improved waffle, which will be tossed across the dispatch-box, and the matter will be declared “dealt with”. When one of the competitors is also the umpire, whose word is final, there really is no come-back.
*Still trying to crack the italics code. Perhaps if I roll up one trouser-leg…….