Sir Bob Neill is MP for Bromley and Chiselhurst, and is Chair of the Justice Select Committee.
You do not have to be a classicist, like the Prime Minister, to understand the importance of the phrase “Pacta Sunt Servanda” – in English, “agreements must be kept”.
It is a fundamental principle of international law concerning treaties, but it goes further. Based as it is upon the principle of good faith between contracting parties, it is also fundamental to any nation’s reputation as a reliable ally or partner in agreements of any kind, and as an upholder of the rule of law. It is also, of course, a basic standard that most of us expect to see met in our own business and personal dealings.
That reputation for standing by our word has served the United Kingdom well over the years. It has given us the moral authority to be a leading force across the world, and it has been the foundation of our success as a global trading nation. Such an asset should be held dear.
In the political context, it does not mean that international agreements are incapable of change, or that there are not times when they should be changed. The Northern Ireland Protocol is one such case.
The Protocol sought to reconcile difficult and sensitive issues post-Brexit: protecting the Belfast (Good Friday) Agreement, preventing a hard North-South border, protecting the EU Single market and safeguarding Northern Ireland’s position within the UK.
Unfortunately, it has failed, as demonstrated by the disruption to trade between the province and the rest of the UK, a growing sense in the province of being separated from the rest of the UK and the collapse of the power-sharing Executive. The need for change is clear.
The normal route should be by renegotiation of its terms. The Protocol makes provision for this in Article 13(8). Article 164(5) (d) of the Withdrawal Agreement itself recognises that the text of the Protocol can be changed to address “deficiencies” or “situations unforeseen”. The situation that has developed in Northern Ireland arguably meets those tests.
Further, Article 16 of the Protocol permits a party to take unilateral “safeguarding measures” (albeit on a temporary basis) to suspend parts of the Protocol if its operation gives rise to diversion of trade or “societal or economic difficulties”.
Regrettably, attempts at renegotiation have so far failed. The needlessly rigid and, at times dogmatic, approach adopted by the EU side has certainly been a major cause of this. I can understand the frustration of Ministers. It has led them to act unilaterally – though not in the first instance by invoking the Article 16 procedure. Instead, the Government has introduced the Northern Ireland Protocol Bill, which had its second reading in the Commons last month.
The Bill would unilaterally disapply almost all of the Protocol from UK domestic law, which if enacted, would breach an international agreement and therefore, with one caveat, international law. To deliberately legislate to do this is unprecedented.
The Government justifies this by invoking the international law doctrine of “necessity” – a concept very rarely used but recognised by Article 25 the 2001 United Nations International Law Commission on State Responsibility, codifying previous case law. For Conservatives, committed as we should be, to upholding the rule of law at home and abroad, and to preserving the UK’s international reputation for good faith, this raises three obvious questions.
First, is the legal necessity test really met? My good friend and colleague Robert Buckland, who I greatly respect, has argued on ConservativeHome that it is. In this case, and unusually, I am not so sure.
The “necessity” doctrine allows a state unilaterally to depart from a treaty if it is the “only means” it has to “safeguard an essential interest against a grave and imminent peril”. In case law, this has also been described as when there is a “real and pressing” need to act.
Even if one accepts that the EU is being unreasonable in its refusal to negotiate meaningful changes to the Protocol under Articles 13 and 164, and also accepts that the disruption caused in Northern Ireland threatens an “essential interest” of the UK, it is difficult to see how legislation is the “only means” available to us when the Article 16 provisions have not been used.
However much we want, for example, to see the DUP return to a power sharing Executive, to ignore the explicit provisions of the treaty is to put the political cart before the legal horse. The Government would be on much stronger ground were it to invoke the Article 16 procedure before legislating.
Second, where is the evidence that the peril is “grave and imminent”? That has not so far been presented to the House. Surely a decision to break treaty obligations is of such significance that Parliament itself should take a view as to whether the very high bar of the “necessity” test has been met. As currently drafted, the Bill gives exceptionally wide “Henry VIII” powers to do this by regulation, with very limited Parliamentary scrutiny. To give Ministers a near blank cheque on such an important issue will strike many as being constitutionally objectionable, and rather un-Conservative.
Third, “necessity” involves only taking such steps as are necessary to remove “the grave and imminent peril”. The Bill goes beyond this. Removing the jurisdiction of the European Court of Justice over some aspects of the Protocol may be a legitimate objective of renegotiation, but where is the evidence that it poses an “imminent” threat? Potential future threats are not sufficient in law.
I have tabled an amendment to place a “parliamentary lock” on the Bill, requiring the Government to bring the evidence they have to the House and obtain a specific vote in favour of bringing its provisions into force. That does not resolve every concern about the Bill, but it does ensure proper democratic scrutiny. Politically, it might be in the Government’s own interest to be able to pray such endorsement in aid.
Sir Bob Neill is MP for Bromley and Chiselhurst, and is Chair of the Justice Select Committee.
You do not have to be a classicist, like the Prime Minister, to understand the importance of the phrase “Pacta Sunt Servanda” – in English, “agreements must be kept”.
It is a fundamental principle of international law concerning treaties, but it goes further. Based as it is upon the principle of good faith between contracting parties, it is also fundamental to any nation’s reputation as a reliable ally or partner in agreements of any kind, and as an upholder of the rule of law. It is also, of course, a basic standard that most of us expect to see met in our own business and personal dealings.
That reputation for standing by our word has served the United Kingdom well over the years. It has given us the moral authority to be a leading force across the world, and it has been the foundation of our success as a global trading nation. Such an asset should be held dear.
In the political context, it does not mean that international agreements are incapable of change, or that there are not times when they should be changed. The Northern Ireland Protocol is one such case.
The Protocol sought to reconcile difficult and sensitive issues post-Brexit: protecting the Belfast (Good Friday) Agreement, preventing a hard North-South border, protecting the EU Single market and safeguarding Northern Ireland’s position within the UK.
Unfortunately, it has failed, as demonstrated by the disruption to trade between the province and the rest of the UK, a growing sense in the province of being separated from the rest of the UK and the collapse of the power-sharing Executive. The need for change is clear.
The normal route should be by renegotiation of its terms. The Protocol makes provision for this in Article 13(8). Article 164(5) (d) of the Withdrawal Agreement itself recognises that the text of the Protocol can be changed to address “deficiencies” or “situations unforeseen”. The situation that has developed in Northern Ireland arguably meets those tests.
Further, Article 16 of the Protocol permits a party to take unilateral “safeguarding measures” (albeit on a temporary basis) to suspend parts of the Protocol if its operation gives rise to diversion of trade or “societal or economic difficulties”.
Regrettably, attempts at renegotiation have so far failed. The needlessly rigid and, at times dogmatic, approach adopted by the EU side has certainly been a major cause of this. I can understand the frustration of Ministers. It has led them to act unilaterally – though not in the first instance by invoking the Article 16 procedure. Instead, the Government has introduced the Northern Ireland Protocol Bill, which had its second reading in the Commons last month.
The Bill would unilaterally disapply almost all of the Protocol from UK domestic law, which if enacted, would breach an international agreement and therefore, with one caveat, international law. To deliberately legislate to do this is unprecedented.
The Government justifies this by invoking the international law doctrine of “necessity” – a concept very rarely used but recognised by Article 25 the 2001 United Nations International Law Commission on State Responsibility, codifying previous case law. For Conservatives, committed as we should be, to upholding the rule of law at home and abroad, and to preserving the UK’s international reputation for good faith, this raises three obvious questions.
First, is the legal necessity test really met? My good friend and colleague Robert Buckland, who I greatly respect, has argued on ConservativeHome that it is. In this case, and unusually, I am not so sure.
The “necessity” doctrine allows a state unilaterally to depart from a treaty if it is the “only means” it has to “safeguard an essential interest against a grave and imminent peril”. In case law, this has also been described as when there is a “real and pressing” need to act.
Even if one accepts that the EU is being unreasonable in its refusal to negotiate meaningful changes to the Protocol under Articles 13 and 164, and also accepts that the disruption caused in Northern Ireland threatens an “essential interest” of the UK, it is difficult to see how legislation is the “only means” available to us when the Article 16 provisions have not been used.
However much we want, for example, to see the DUP return to a power sharing Executive, to ignore the explicit provisions of the treaty is to put the political cart before the legal horse. The Government would be on much stronger ground were it to invoke the Article 16 procedure before legislating.
Second, where is the evidence that the peril is “grave and imminent”? That has not so far been presented to the House. Surely a decision to break treaty obligations is of such significance that Parliament itself should take a view as to whether the very high bar of the “necessity” test has been met. As currently drafted, the Bill gives exceptionally wide “Henry VIII” powers to do this by regulation, with very limited Parliamentary scrutiny. To give Ministers a near blank cheque on such an important issue will strike many as being constitutionally objectionable, and rather un-Conservative.
Third, “necessity” involves only taking such steps as are necessary to remove “the grave and imminent peril”. The Bill goes beyond this. Removing the jurisdiction of the European Court of Justice over some aspects of the Protocol may be a legitimate objective of renegotiation, but where is the evidence that it poses an “imminent” threat? Potential future threats are not sufficient in law.
I have tabled an amendment to place a “parliamentary lock” on the Bill, requiring the Government to bring the evidence they have to the House and obtain a specific vote in favour of bringing its provisions into force. That does not resolve every concern about the Bill, but it does ensure proper democratic scrutiny. Politically, it might be in the Government’s own interest to be able to pray such endorsement in aid.