London Daily

Focus on the big picture.
Sunday, Mar 22, 2026

Northern Ireland protocol: what is the ‘doctrine of necessity’?

Northern Ireland protocol: what is the ‘doctrine of necessity’?

The UK government hopes a little-known legal principle will overturn parts of the post-Brexit agreement
In justifying its attempt to unilaterally overturn parts of the post-Brexit agreement with the EU, the UK government has invoked a little-known legal principle known as the “doctrine of necessity”. The loophole is allowed by the UN’s International Law Commission to be used by a state facing “grave and imminent peril”.

But the government’s ex-legal adviser Jonathan Jones said the EU would find the use of the doctrine “completely unpersuasive”.

He said Brussels would “understandably” take the UK’s unilateral decision to be a clear breach of the withdrawal agreement, which was passed by parliament days after Boris Johnson’s landslide election win in December 2019.

On Monday, Liz Truss, the foreign secretary, published a bill designed to hand the government powers to neutralise parts of the protocol on customs rules, state aid and the jurisdiction of the European court of justice.

Jones, who quit as head of the government legal department in November 2020, told Sky News that to invoke such an argument required “an incredibly high threshold” but the government’s reasoning was “very thin”.

He argued that the EU would view the move as “a very hostile act” tantamount to the UK “taking an axe to the withdrawal agreement” – of which the protocol was a significant part, ensuring no hard border on the island of Ireland but effectively creating a customs border down the Irish sea on goods travelling between it and Great Britain.

“I have no doubt the EU will bring a legal challenge,” Jones said. But he added the UK appeared to be “seeking to undo the role of the European court itself so it’s very unclear whether it will even cooperate with any legal action or dispute resolution proceedings that the EU may bring, so I think we’re in for a very, very tangled episode following this bill.”

The bill is likely to face staunch opposition from some Tory MPs when it is voted on, and even stronger pushback in the House of Lords.

Dominic Grieve, a former Conservative attorney general, said the government’s legal argument was “difficult to follow in all the circumstances, given the way the protocol was put together”.

Mark Elliot, a professor of public law and chair of the faculty of law at the University of Cambridge, also believed there had been a clear breach of the withdrawal agreement by exempting parts of the protocol from it.

He pointed out the International Law Commission precluded a state from being able to use the “doctrine of necessity” defence if it had “contributed to the situation of necessity”.

Elliot added: “In the light of those requirements, it seems to me very difficult to argue that there is a situation in which the international law doctrine of necessity applies.”

Labour similarly disputed one of the government’s main arguments. Emily Thornberry, the shadow attorney general, said: “This is complete and utter nonsense. The doctrine of necessity relies on grave and immediate peril. Boris Johnson’s career may be in peril but it doesn’t seem to apply otherwise.”

The Foreign Office insisted it was a legitimate argument. “The term ‘necessity’ is used in international law to lawfully justify situations where the only way a state can safeguard an essential interest is the non-performance of another international obligation,” it said in a statement.

“The strain that the arrangements under the protocol are placing on institutions in Northern Ireland, and more generally on sociopolitical conditions, has reached the point where the government has no other way of safeguarding the essential interests at stake than through the adoption of the legislative solution that is being proposed.

“There is, therefore, clear evidence of a state of necessity to which the government must respond to.”
Newsletter

Related Articles

0:00
0:00
Close
Meghan Markle’s Possible UK Return Sparks Renewed Attention on Sussex Role
Starmer Convenes Urgent Talks on Cost-of-Living Pressures Linked to Iran Conflict
Starmer Convenes Urgent Talks on Cost-of-Living Pressures Linked to Iran Conflict
UK Investors Eye Bargain Shares Ahead of ISA Deadline Amid Market Volatility
UK Investors Eye Bargain Shares Ahead of ISA Deadline Amid Market Volatility
Northern Lights Expected Over UK Skies Tonight Amid Strong Solar Activity
UK Condemns Iran Missile Strike and Warns Against Threats to British Personnel
UK Warns of Global Flight Disruptions as Iran Conflict Escalates Under Trump’s Leadership
UK Condemns Iran After Missile Strike Targets Strategic Diego Garcia Base
Deadly Meningitis Outbreak in UK Reinforces Urgency of Vaccination Campaigns
Iran Launches Long-Range Missile Strike on Remote US-UK Base, Signaling Expanded Reach
Iran Launches Long-Range Missile Strike on Remote US-UK Base, Signaling Expanded Reach
UK Rules Out Cyprus Base Role in Joint US Self-Defence Framework
UK Ends Hereditary Peerage Rights in Parliament in Historic Constitutional Reform
Lord Walney Warns of Expanding Iranian Influence Networks Within the United Kingdom
Iranian National Among Two Arrested After Attempt to Access UK Nuclear Submarine Base
Deregulation, Artificial Intelligence, and Fraud Laws Reshape UK Financial Services Landscape
UK Considers Lower Speed Limits to Reduce Fuel Use Amid Escalating Energy Crisis
UK Borrowing Costs Surge to Post-Crisis High as Markets React to Inflation and War Risks
UK Government Prepares Emergency Economic Measures as Iran Conflict Fuels Financial Risks
Meningitis B Outbreak in the UK Raises Urgent Health Warnings as Cases Surge
Iran Issues Stark Warning to Britain Over US Base Access Amid Expanding Conflict
United Kingdom Authorizes US Strikes from British Bases as Iran Threatens Key Shipping Routes
Reform UK Suspends Scottish Candidate Following Financial Misconduct Allegations
Apple issues an unusual warning: this is how your iPhone can be hacked without you doing anything
UK and Nigeria Reach Agreement to Accelerate Return of Irregular Migrants
UK Sets New Aid Priorities Following Significant Budget Reductions
Cyprus President Urges Open Dialogue Over Future of British Sovereign Base Areas
Cyprus President Urges Open Dialogue Over Future of British Sovereign Base Areas
UK Plans 50% Steel Tariffs in Bold Move to Protect Domestic Industry
Iran Conflict Sends Shockwaves Through UK Economy as Energy Costs and Trade Risks Surge
UK Health Officials Warn Kent Meningitis Outbreak Still Active as Cases Continue to Rise
UK Climate Progress Faces Scrutiny Over Reliance on Carbon Accounting Methods
UK Deploys Advisers to United States to Shape Plan for Reopening Strait of Hormuz
Amazon Bets on AI-Driven Alexa Upgrade to Revive UK Smart Speaker Market
UK Abortion Law Changes Spark Strong Response from Church Leaders and Pro-Life Advocates
UK Abortion Law Changes Spark Strong Response from Church Leaders and Pro-Life Advocates
GB News Faces Regulatory Complaints Over On-Air Remarks on ‘Genocide’ Claims
UK Signals Expanded Support for Gulf Allies as Iranian Attacks Intensify Regional Threats
UK VAT Decision Opens Path for Potential Refunds to U.S. Biopharma Firms
UK and Canada Advance ‘Middle Power’ Strategy to Shape Global Influence Beyond Superpowers
Google Explores AI Opt-Out Features in Search to Address UK Regulatory Concerns
Google Explores AI Opt-Out Features in Search to Address UK Regulatory Concerns
UK Fuel Prices Poised to Surge as Global Tensions Drive Oil Market Volatility
UK Fuel Prices Poised to Surge as Global Tensions Drive Oil Market Volatility
UK Holds Back on Hormuz Escort Mission While Continuing Talks with Allies
TrumpRx Pricing Platform Faces Scrutiny as Some Medicines Remain Costlier Than in the UK
UK, Netherlands and Finland Explore Joint Defence Investment Bank to Boost Military Capability
Deadly Meningitis Outbreak in Kent Raises Alarm as Cases Surge and Emergency Response Expands
UK Security Adviser Viewed US-Iran Nuclear Deal as Within Reach Before Sudden Escalation
×