Northern Ireland Protocol Bill

Debate between Lord Howell of Guildford and Lord Pannick

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Pannick (CB)]

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.

[Lord Howell of Guildford (Con)]

The noble Lord speaks with great authority and expertise—I have heard it often before and it is very good indeed—but does he think Articles 49, 50, 51 and 52 of the Vienna Convention on the Law of Treaties also have relevance and allow some scope to move away from the narrow confines of the treaty as it stands now, when the other parties may be breaking it in some way?

[Lord Pannick (CB)]

I think the noble Lord refers to obligations of good faith. The answer is that the protocol sets out a mechanism, as I said, for resolving the dispute between the parties—the UK and the EU—as to whether each is complying with its obligations. The United Kingdom cannot say that the test of necessity is satisfied when the protocol sets out a dispute-resolving mechanism.

I agree with the excellent speeches by the noble Baroness, Lady Chapman, and the noble Lord, Lord Purvis: this is a manifest breach of international law and I very much hope that the noble and learned Lord, Lord Stewart, the Advocate-General for Scotland, will address these points when he answers this debate.

Israel: Illegal Settlers

Debate between Lord Howell of Guildford and Lord Pannick

Thursday 14th October 2010 Lords Chamber

[Lord Howell of Guildford]

Behind the right reverend Prelate’s question is a fear which I and many share. There could come a point when there is so much building and intrusion that it cannot even be contemplated as part of the swap of lands or anything else in a final negotiation. This reinforces our determination to bring to bear on the Israelis the necessity of continuing the moratorium on new building and to realise that in the eventual negotiation settlement this matter has got to be reasonably settled so that there can be a viable Palestinian state.

[Lord Pannick]

My Lords—

--- Later in debate ---

[Lord Phillips of Sudbury]

My Lords—

[Lord Pannick]

My Lords, does the Minister agree that a more fundamental obstacle to a peace settlement than the settlements in the West Bank, which occupy some 5 per cent or so of that territory, is the failure of Arab states to introduce into their own countries the rule of law and the right to freedom of expression which would promote a real debate in those countries about the true interests of the unfortunate Palestinian people?

[Lord Howell of Guildford]

The noble Lord is of course right that the issue of settlements is difficult. It is not the only issue and there are many broader considerations on which he has quite correctly touched.

Gaza Flotilla

Debate between Lord Howell of Guildford and Lord Pannick

Wednesday 2nd June 2010 Lords Chamber

[Lord Howell of Guildford]

That is one step down the line. The first thing is to find out what happened, who is guilty and whether we are looking at a botched operation by the Israeli elite corps, as most people in Israel are admitting, or whether we are looking at crimes that require punishment. That lies far down the line, so I do not think that this is a time for ruling in or ruling out.

[Lord Pannick]

The Minister said that there must be an international inquiry. Does he accept that there is every reason for confidence that an inquiry conducted by an Israeli judge—should the Israeli Government proceed along that route—would be independent and thorough, given the well deserved reputation of the Israeli judiciary for independence and protecting the human rights of all those whose interests have been considered by the Israeli courts? Is the Minister aware that the criticisms of these unhappy events from outside Israel are loudly echoed within Israel by many politicians and by large sections of the press and the public? Has he seen the editorial and other articles in yesterday’s well respected Haaretz newspaper, the flavour of which is given by its headlines, “The price of flawed policy”, “A failure any way you slice it” and “Bibi the schlimazel”—that is, a person who stumbles from one calamity to another?

Korean Peninsula: “Cheonan”

Debate between Lord Howell of Guildford and Lord Pannick

Wednesday 2nd June 2010 Lords Chamber

[Lord Pannick]

Have the Government considered the possibility of expanding or encouraging the expansion of the jurisdiction of the ICC so that it would have a role in relation to conduct within a state that does not recognise the powers of the ICC?

[Lord Howell of Guildford]

We debated these matters closely in this House—I cannot remember whether the noble Lord was a Member at the time—and looked at that possibility. The Government have no plans to do so at present.