My Lords, I rise to move Amendment 3 and speak to Amendment 67. If the Government are so confident of their legal case, which rests on the doctrine of necessity, they should surely have no hesitation in making a full legal justification available to us.
They surely owe us that much, as we grapple with the contrary views that have been expressed by many distinguished sources. The International Law Commission has stressed that the doctrine of necessity must be construed narrowly and can be invoked only in exceptional circumstances, being strictly necessary to safeguard essential interests against a “grave and imminent peril”. Our Constitution Committee finds:
“It is difficult to conclude that the circumstances cited by the Government”
in their own short legal paper, have indeed
“created ‘grave and imminent peril’.”
As the noble Lord, Lord Pannick, pointed out at Second Reading, the Government have been complaining about the protocol for a long time—almost since they signed it, in fact. So if it was not imminent three years ago, it is not really imminent now. The Constitution Committee also doubts that this Bill is the “only way” to protect UK interests since, as has already been explored, there is Article 16, which has not, despite many noises over the past year, been initiated. There are also dispute resolution provisions, and of course negotiations—or talks or something—which are, as we have been discussing, thankfully now going on.
The Constitution Committee also argues that the Bill’s provisions
“go beyond those strictly necessary to remedy the peril that the Government”
claim to identify. After all, if the Bill includes, in Clause 13, the removal of the oversight role of the CJEU, what has that got to do with the doctrine of necessity and “grave and imminent peril”? I would be interested in the Government’s reply to that point.
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The Constitution Committee concludes:
“The House has been asked to pass a Bill the enactment of which, in its current form, would in our view clearly breach the UK’s international obligations.”
It is interesting that it chooses “enactment”. There has been quite a lot of discussion about whether it is the introduction of the Bill or its implementation. The Constitution Committee, perhaps, cleaves through that debate by choosing “enactment” as the key point.
The committee firmly rejects the Government’s reliance on the doctrine of necessity. This, perhaps, coincides with other distinguished voices. Sir Jonathan Jones, former head of the Government Legal Service, said that the Government’s explanation was “hopeless”—he is not mincing his words there. He said it provided no evidence for the extreme conclusion that the protocol represented a grave peril, and no explanation for why the Government had not attempted to use Article 16. He also made the point that if the UK really did face “imminent peril”, the Government would be dealing with the situation more quickly than through a Bill that would take many months, at least, to get through Parliament. You do not deal with something that is grave an imminent by taking a leisurely pace with a Bill.
I will also quote Professor Mark Elliott, well known in the House, a professor of public law at Cambridge. He pointed out that the Government were aware, as we know from government documents, before it ratified the withdrawal agreement, that the protocol could result in cost and disruption to businesses in Northern Ireland. We know that. Nobody is mincing their words in their criticism of the Government. He concluded that it was “positively risible” to argue that an “unforeseen peril” had arisen. Instead, the situation that has come about is one that the Government
“could have predicted and did in fact predict.”
So I am afraid the Government are not getting much support on its legal arguments.
The Constitution Committee warned us, as it did on the UK Internal Market Bill, that:
“The introduction and enactment of legislation that results in the UK violating its obligations under international law is … cause for serious constitutional concern.”
So it is not just a legal matter, it is a constitutional matter because:
“Any breach of international law threatens to undermine the rule of law and international confidence in future treaty commitments made by the UK Government.”
The committee also raises the question of whether Ministers are contravening
“the Ministerial Code to comply with the law, including international law.”
Perhaps the Minister would cover that point in this response.
The most telling blow against the doctrine of necessity is that the Government themselves negotiated, signed and gleefully proclaimed the protocol as part of the withdrawal agreement, saying it had “got Brexit done”. Political convenience cannot now prevail against these weighty and damning arguments. If the Government have any hope or desire to persuade us against all
these contrary views, surely the minimum they can do is share with us their full legal argument, by publishing the legal advice and justification they received. I beg to move my amendment.