Why PM can't dump NI protocol: James O'Brien blown away by legal expert

28 June 2022, 14:41

By James Bickerton

James O'Brien had "one of the most remarkable interviews" he'd ever conducted with a law professor, who explained why the Government lacks the legal authority to dump the Northern Ireland protocol post-Brexit.

On Monday MPs voted for measures that would scrap large parts of Britain's post-Brexit deal with the EU, which includes the protocol.

Under its terms Northern Ireland effectively remains part of the European single market, necessitating customs checks on goods travelling to other parts of the UK.

The Government argues dropping the protocol is legally justified under the doctrine of 'necessity', which permits some extra-constitutional actions to maintain stability.

However, appearing on James's LBC show Professor Mark Elliott, Chair of the Faculty of Law at the University of Cambridge, argued that the doctrine of necessity may not be legally applicable for the protocol.

He told James: "I think the key thing is it's very very difficult to see how it can apply.

"The first thing to say is that in order to plead necessity it's got to be necessary, and that means that there haven't got to be other less dramatic things that you could have tried, but you haven't tried.

"The very obvious thing that the UK Government hasn't tried is Article 16. Article 16 of the Northern Ireland protocol says there are circumstances where the UK can take unilateral action; if the UK has reasonable grounds to say the protocol is causing serious problems there was a mechanism built into the protocol to allow them to take steps to resolve that.

"It's very hard to see, if they haven't bothered to do that how it can then be necessary to go for the nuclear option which is legislating to override the protocol."

Professor Elliott also pointed out the UK is responsible for creating the problem, further undermining the doctrine of necessity.

He explained: "The other problem is you haven't got to have contributed to the situation you're now complaining about if you want to evoke the doctrine of necessity and of course the UK agreed to the protocol less than three years ago, and it's now complaining about things the Government foresaw in its own impact assessment."