My Lords, I want to focus on why this Bill would, if implemented, be a manifest breach of international law. Let me identify first what is not in dispute. The Government are not suggesting that it would be proper to bring forward a Bill which, if implemented, would breach international law—and quite rightly so. The Government also do not dispute that the Bill would resile from important aspects of the protocol and that this would be a breach of international law, unless they can rely on the doctrine of necessity. There is also no dispute about the criteria for invoking the doctrine of necessity. Your Lordships have heard that the Government must show that their action
“is the only way for the State to safeguard an essential interest against a grave and imminent peril”,
and the Government accept that necessity cannot apply if
“the State has contributed to the situation of necessity.”
The Government cannot dispute these criteria, because they are set out in Article 25 of the International Law Commission’s Draft Articles on state responsibility 2001, a codification of the basic rules of international law.
It seems to me that there are three reasons why the Bill, if implemented, would plainly breach international law. The first has already been addressed by the noble Lord, Lord Howard. The Bill is not the only way to deal with the perceived problem. The noble Lord rightly drew attention to Article 16, a mechanism in the protocol for addressing
“serious economic, societal or environmental difficulties”.
I entirely agree with what he said. But there are other problems. The second problem is that there is no “imminent peril”. The Government have been complaining about the protocol for many months—indeed, since soon after we signed it. And even if these fundamental difficulties were somehow to be overcome, there is a third fundamental difficulty: the Government have themselves caused the perceived problem, or at least substantially contributed to it. We signed the protocol in order, as then Prime Minister Boris Johnson said, to “get Brexit done”.
The Minister, the noble Lord, Lord Ahmad, in opening this debate, and the noble Lord, Lord Dodds, listed the difficulties that are caused, they say, by the protocol. Well, the Government should have thought about that before signing it. The International Law Commission’s notes to Article 25 point out, at paragraph 20, that the International Court of Justice has held that a state cannot rely on necessity when it has,
“‘helped, by act or omission’”
to bring about the situation of which it now complains. It is elementary that a state cannot sign a treaty and then seek to resile from it on the basis that the terms it has agreed damage the interests of the signing state.
The Government then say, “Yes, but the EU is not applying the protocol in good faith”—the noble Lord, Lord Forsyth, referred to bloody-mindedness, as he put it, by the EU. But there are mechanisms for resolving a dispute about the obligations of the parties to the protocol. We agreed, by Article 12, to the jurisdiction of the Court of Justice in Luxembourg to resolve disputes. The Government and the noble Lord, Lord Forsyth, may not like it, but that is what we agreed to in the protocol.