The Foreign Secretary’s defense of a bill to effectively tear up parts of the controversial Northern Ireland Protocol has been dismissed as “absolutely absurd” by a lawyer.
Liz Truss has shot herself in the foot for claiming the Northern Ireland Protocol Bill was brought forward on the basis of the legal doctrine of necessity, a parliamentary committee has heard.
Professor Alan Boyle said the defense of necessity is only relevant when international law is breached, so Ms Truss was essentially admitting that was the case with the bill.
In Parliament on Monday, Ms Truss defended the legal advice underpinning the Bill, telling MPs: ‘We have set out the case extremely clearly in the legal advice and the doctrine of necessity has been used by many other governments in the past where there is a serious problem and the other party is not willing to renegotiate this treaty.
But Professor Boyle, Emeritus Professor of Public International Law at the University of Edinburgh, said he was “appalled” by his comments.
He told the Northern Ireland Affairs Committee on Wednesday: ‘She was defending this on the basis of the necessity principle of international law.
“Well, I hope someone has a word with her and tells her not to say that, because necessity as international law is a defense against a violation of international law. So it’s only relevant only if you are already breaking international law.
“So the foreign minister is virtually saying, ‘oh, yes, we’re breaking international law, but that’s fine, because it’s necessary.’ Well, that’s complete nonsense.
“You know, can you imagine a lawyer for the UK in the arbitration? They’re going to be faced at the other side saying, ‘Oh, the Foreign Secretary has admitted there’s a breach of international law”, then she is really shooting herself in the foot.
He said the government’s position is “arguable, provided it is based fairly and squarely on Article 16”.
Article 16 is a mechanism in the protocol that allows either party to the agreement to unilaterally suspend certain aspects of the arrangement if they believe they are causing economic, societal or environmental harm.
The Government did not trigger it, with Ms Truss telling Parliament she had considered ‘all options, including triggering Article 16, to see if that would work, to address the very serious problems in Northern Ireland North, and I’ve come to the real conclusion that they won’t.”
Professor Boyle said he saw the bill as a ‘serious attempt to put power-sharing back on the road’ and that it was not a breach of international law, but rather ‘throwing the bases of a notice of derogation which will have to be notified to the EU from a limited number of articles” – such as Article 16.
Professor Holger Hestermeyer, who also addressed the committee, warned that Article 16 is not a “silver bullet” as there could still be areas of dispute further down the line.
The Professor of International and European Law at King’s College London said: “I don’t think Article 16 is a silver bullet, particularly because the factual evidence of what is appropriate for the different concerns on both sides and for both communities, and you come from Northern Ireland, you know it better than I, it is extremely difficult to find a solution which pleases both parties.
“And then you can assume that if you go to dispute resolution, let’s say have to discuss whether the issues are appropriate, whether they’re necessary, whether they actually help safeguard certain societal interests, those will all be in dispute. “
On Monday evening, the bill cleared its first hurdle in the House of Commons, clearing the way for detailed consideration in the coming weeks.
Boris Johnson’s government has said moves to remove checks on animal and plant goods and products traveling from Britain to Northern Ireland are necessary to safeguard the Good Friday Agreement and peace and stability.