Government's Northern Ireland Protocol Bill and domestic & international law

A few days ago — at the second reading stage in the House of Commons — the government secured a majority to abrogate the Northern Ireland arrangements under the Brexit deal. (It would appear that Former Prime Minister Theresa May condemned the Northern Ireland Protocol Bill as illegal and damaging to the UK's international standing. Mind you, she abstained from voting against the government?)

I have concluded that the Northern Ireland Protocol Bill is very damaging in terms of domestic law and, as far as international law is concerned, the treaty abnegations are apt to be regarded as unlawful. I will first introduce the essential background to the ongoing political issues with the remarks by Sir Jeffrey Donaldson, leader of the Democratic Unionist Party (DUP, advocating Northern Ireland's continuation as part of the UK). Then, I will discuss the troubling issues as regards domestic law before turning to the international dimension.

By way of introduction, the Northern Ireland Protocol is part of the Brexit withdrawal agreement which falls within the ambit of international law. The Northern Ireland Protocols were special rules concerning the need for a border with the European Union through the Republic of Ireland. This stems from protecting the spirit of the Good Friday Agreement which put an end to "The Troubles". 

The problem here is that the DUP have declined and vetoed the formation of Northern Ireland's power-sharing executive with Sinn Féin. They contend that the Irish Sea border undermines Northern Ireland's bearing in the UK.

What does Northern Ireland Protocol Bill seek to change

• "Regulation of goods: option to choose between dual routes" as either "a UK regulatory route or the EU regulatory route (or both) as respects regulated classes of goods" — section 7
• Treasury to be able to regulate Northern Ireland's "value added tax, excise duties and other taxes" — section 17
• Ministerial powers with regards to future Northern Ireland Protocol related matters: "Minister of the Crown may engage in conduct in relation to any matter dealt with in the Northern Ireland Protocol (where that conduct is not otherwise authorised by this Act) if the Minister of the Crown considers it appropriate to do so in connection with one or more of the purposes of this Act" — section 18
• Northern Ireland's courts and tribunals will not be bound by European Court — section 20
• Regulations under this Act will have the power and force to make "any provision that could be made by an Act of Parliament". This regulation may contradict any erstwhile Northern Ireland Protocol agreements (section 22(a)) and even our domestic law (section 22(b)) — section 22

✲✲✲

Tremendous government power and the separation of powers doctrine

The most surprising - and disturbing - element of this Bill is towards the end (under heading "Final provisions") . It is section 22. In that section, a minister of the government has the power to effect law-making regulation with "any provision that could be made by an Act of Parliament". These "Henry VIII powers" (as they are referred to) are very alarming. It would permit a minister to exercise a law-making competence which has the standing of primary legislation (without the express need or oversight of Parliament). 

An enduring aspect of our constitution is that ministers act within their discretion accorded to them by Parliament - not replace Parliament. Moreover, our uncodified constitution also preserves the separation of powers. In this context, it requires the executive and legislative organs of the state to be clearly divided to ensure proper control and accountability. This prevents the concentration of power. The problem with this Bill is that it accords a power to make provisions which have the standing of primary legislation - which can even amend that original nominal statute - without any further active recourse to Parliament.

One may ask: why on earth would any government bill accord an almost unconstrained ministerial discretion vis-à-vis creating a "provision that could be made by an Act of Parliament"? I smell a rat. Under the doctrine of Parliamentary sovereignty, primary legislation is the highest superlative body of law which cannot be overruled in our lands. Our courts - when confronted with primary legislation - endeavour to interpret that law. Not only do the courts not strike down an Act of Parliament; they don't even question the validity of an Act or inquire into its legislative process. (In legalese, this doctrine is known as the "Enrolled Bill Rule" as per Lord Campbell in Wauchope (1842) and affirmed recently by the Supreme Court in the famous HS2 Action Alliance case [2014] UKSC 3.) This fuzzing of the separation of powers may have been engineered to place the courts in the invidious position of having to interpret ministerial law-making provisions as though it were Parliament's by virtue of its designation as an "Act of Parliament" whose Parliamentary procedure was, as I explained, exempted from judicial scrutiny.

This strikes me as an authoritarian attempt to place the government beyond the purview of the courts. In Miller II, Boris Johnson's government argued that prorogation was a non-justiciable exercise of a prerogative power (i.e., that prorogation was not a proper subject for the courts). However, the Supreme Court held that it was alien to our constitution to have an executive power that was unaccountable to the other organs of state - especially Parliament (having been obviously prorogued).

In the aftermath of Miller II, Lord Sumption endorsed the judgment observing that we should be concerned with the process - not the politics. He commented inter alia that: 

"the court's judgment, however, is concern not with the political issues of Brexit but with the process by which those issues are to be resolved." (The Times: It's about the process, not politics).  

I suspect that this Bill is will be a licence for the government to do what it can to negotiate a better protocol deal for Northern Ireland. But, as Lord Sumption remarked, we should be very concerned about the process - and not the politics.

The ongoing debate and strife concerning the legal structure governing Northern Ireland is a deadlocked fiasco and the British government is still navigating the crisis. But, it does strikes me that this is a subject that demands the participation and oversight of our Parliament. Ministerial discretion covering a substantial issue of national importance should be subject to proper Parliamentary accountability and scrutiny. Not to mention proper judicial oversight.

The doctrine of necessity and international law

Interestingly, the government has published it's legal position. The Attorney General's legal justification relies on Article 25 of the UN-based International Law Commission 1948 and the "doctrine of necessity" which the Attorney General maintains is "a clear basis in international law to justify the non-performance of international obligations".

Under Article 25, the circumstance of necessity involves satisfying the following criteria:

1. Action must relate to safeguarding an "essential interest" of the State
2. Interest must be subjected to a "grave and imminent peril"
3. Action must have been "the only way" to safeguarding that interest
4. Action should not have "seriously impaired an essential interest" of the other State
5. Obligation must not expressly excluded the defence of necessity
6. State invoking necessity must not have contributed to or caused the situation

In the Danube Dam case, Hungary and Czechoslovakia signed the Budapest Treaty of 1977 to construct a vast barrage project on the Danube to produce hydroelectricity. Later, Hungary abandoned its role in the project and submitted the dispute to the International Court of Justice on the grounds "of ecological necessity" to avert serious water supply damage and destruction of the aquatic marine environment. The Court held (in paragraphs 51-52) that: 

The Court considers, first of all, that the state of necessity is a ground recognized by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation. It observes moreover that such ground for precluding wrongfulness can only be accepted on an exceptional basis. The International Law Commission was of the same opinion when it explained that it had opted for a negative form of words in Article 33 of its Draft

"in order to show, by this formal means also, that the case of invocation of a state of necessity as a justification must be considered as really constituting an exception - and one even more rarely admissible than is the case with the other circumstances precluding wrongfulness.. ." (ibid., p. 51, para. 40).

Thus, according to the Commission, the state of necessity can only be invoked under certain strictly defined conditions which must be cumulatively satisfied; and the State concerned is not the sole judge of whether those conditions have been met. (Emphasis added)

While the state of Northern Ireland is undoubtedly an "essential interest" of the UK (point no. 1); Northern Ireland would most probably not be regards as subjected to a "grave and imminent peril" (point no. 2). In the eighteenth-century Neptune case, an American-registered vessel on voyage to France was captured by the British and its cargo seized. The British government justified the seizure on the grounds of necessity a propos being "threatened with a scarcity of those articles". It was dismissed as being imaginary and neither real nor pressing. In this case, "grave and imminent peril" translates as a situation of danger to the State or its population. 

Northern Ireland is beset by political crisis - but its citizens are not in any danger. Neither Sinn Fein nor the DUP have suggested a return to 'The Troubles'. The DUP merely have to assent to the election of the Stormont Assembly Speaker Michelle O'Neill. As with the Neptune case, the present crisis would probably not meet the standard of a "grave and imminent peril". Even if assuming that Northern Ireland was in peril, how would such disparate addenda (such as the authority of the European Court) assuage this "grave and imminent peril"? The very fact that tax-related regulations and the Luxembourg Court are also being repudiated would — to my mind — militate the ostensible "grave and imminent peril" claim. At any rate, there is little point in proceeding with the other criteria as we have hardly satisfied this point.

My hunch is that the government's attempt to manoeuvre via the doctrine of necessity to renege on treaty obligations would probably fail. It would most likely engender certain diplomatic and political blow-back.