23rd February 2023
You may recall that the government of the United Kingdom, when it published the Northern Irish Protocol Bill also published a “legal position” in support of the Bill.
The purpose of that “legal position” was to provide a response to those troublesome sorts inside and outside the government who wanted to know if the proposals in the Bill would breach international law.
You may also recall that somehow it became known that the government’s external legal adviser – pleasingly known as the “Treasury Devil” – was not altogether comfortable with this legal position.
This all very exciting at the time – though like many things in our relentless post-Brexit politics, it now seems a long time ago.
The offered justification was the doctrine of legal “necessity”.
My post on this was “The bare “necessity” – how the legal position of the United Kingdom on the Northern Irish Protocol Bill makes no sense”.
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As far as can be worked out, this remains the government’s sole justification under international law for the proposals.
This in turn means that if this justification falls away, there will be no basis for the proposals in international law.
The Bill’s key provision which would enable the United Kingdom to breach the Northern Irish Protocol would be a breach of international law.
You may not care that is the the case – and you may just shrug or even go “hurrah”.
But that nonchalant or merry response does not take away from the breach of international law, and that is what the government wanted to pretend was not going to happen.
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The government now has a problem.
The Northern Ireland Bill’s lack of parliamentary progress evidences, if not demonstrates, a lack of urgency by the government.
Even the Bill’s supporters talk of it only as an option, to be used “if required”.
The PM’s spokesperson says the Northern Ireland Protocol Bill is an “important piece of legislation if required”
ERG and co think the passage of the bill *is* required, whereas no10 does not
— Adam Payne (@adampayne26) February 20, 2023
But something which is not urgent and optional cannot at the same time meet the international law test of necessity.
By their own (lack of) conduct the government has undermined the only argument they (said they) had.
And this is not just the view of a liberal legal blogger, but also that of a former Lord Chancellor and member of the cabinet during during Brexit, Robert Buckland:
📝 Former Secretary of State Robert Buckland wrote in @TheHouseMag: "The Northern Ireland Protocol Bill has outlived its political usefulness and no longer has any legal justification."https://t.co/ye5xZz4S4r
— PoliticsHome (@politicshome) February 22, 2023
Buckland avers in the magazine of the House of Commons itself:
“The Northern Ireland Protocol Bill has outlived its political usefulness and no longer has any legal justification. It is the proverbial dead letter.”
One may question if it ever really had any legal justification.
But even taking the government’s position at its highest, that purported justification has now gone.
What was a bare “necessity” argument is now just, well, bare.
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Good. Now the Government must properly stand up to the DUP and ERG and pass a bill that executes the revised Protocol. This may harness votes from opposition parties, if necessary. It this is done, by an act of the Parliament of the United Kingdom, there will be no democratic deficit, especially if you are a Unionist.
But Mr Johnson thinks it is a very good bill.
There never was a necessity to justify the Northern Ireland Protocol Bill. Unless of course the government are saying there is already a state of necessity but they are doing nothing about it presently. Or the bill is not currently “necessary” but is intended to deal with some necessity that might arise in the future.
The bill has made no further parliamentary progress since it completed its committee stage in the Lords on 7 November. That tells you how “necessary” it is perceived to be.
In my judgement, it was just political posturing. As is the Bill of Rights Bill, which has made no progress since second reading last June.
The Retained EU Law (Revocation and Reform) Bill has some further committee sittings scheduled in the Lords. Of the three, this seems to be the one the government really cares about.
I’m finding Mr Sunak to be a very savvy and subtle operator. I’m inclined to think this position is deliberate. Sunak respects the rule of law. He does not want to breach international law, so he’s removed the justification for it. Maybe I’m being too generous.
A point that is often overlooked in the reporting of the dispute over the Protocol is the operation of grace periods, which means that hitherto the practical impact of the Protocol on consumers in NI has been slight. Grace periods, for example, allow supermarkets to bring products into NI from GB without the functioning of a system of checks to ensure their compliance with the regulations of the single market. These periods have simply been unilaterally extended by the government. The EU has acquiesced, so as to allow the quest for a negotiated solution to potential problems around the implementation of the Protocol to continue. Another way of putting this is that the can is continually being kicked down the road. At some point the EU’s patience is going to be exhausted and at that point I fear the government (if it continues to be paralysed by the combined opposition of the ERG and DUP) might then claim that it is acting out of urgent necessity. A deadline of sorts looms when the Trade and Cooperation Agreement comes up for renegotiation in a couple of years time. One wonders how willing the EU will be to agree new terms with a party that made little effort to implement the original deal it signed up to.