London Daily

Focus on the big picture.
Wednesday, Mar 18, 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
UK Security Adviser Viewed US-Iran Nuclear Deal as Within Reach Before Sudden Escalation
UK Prime Minister Urges Continued Focus on Ukraine Amid Escalating Iran Conflict
UK Introduces New Safeguards to Shield Lenders from Bank Run Risks
UK Promotional Products Market Surpasses £1.3 Billion as Demand Strengthens in 2025
Reeves Pushes for Deeper UK-EU Economic Ties to Revive Growth
UK Security Adviser Saw No Imminent Iranian Nuclear Threat Days Before War Erupted
France Signals Warm Welcome for UK Return to EU Single Market Amid Renewed Cooperation Talks
UK Defence Official Criticises Boeing Over Delays to E-7 Wedgetail Programme
UK Urged to Secure Quantum Talent as Minister Warns Against Repeating AI Setbacks
UK Mayors Set to Gain New Spending Powers Under Reeves’ Fiscal Devolution Plan
Western Allies Urge Restraint as Israel Weighs Expanded Ground Operation in Lebanon
Trump Warns NATO Faces ‘Very Bad’ Future Without Stronger Allied Support in Iran Conflict
UK Minister Says Britain Not Bound to Support Every Demand From U.S. President
Starmer Tells Trump Britain Will Not Be Drawn Into Wider Iran War
Starmer Tells Trump Britain Will Not Be Drawn Into Wider Iran War
UK Set to Introduce Steel Tariffs of Up to 50 Percent in New Industrial Strategy
European Governments Decline Trump’s Call to Send Warships to Reopen Strait of Hormuz
Fears Over Iran Conflict Weigh on UK Consumer Confidence
Starmer Says UK Working With Allies on Hormuz Shipping Plan After Trump Raises Pressure
Iran War and Energy Shock Shake Britain’s Economy and Political Debate
Deadly Meningitis Outbreak at UK University Leaves Two Dead and Several Seriously Ill
Deadly Meningitis Outbreak at UK University Leaves Two Dead and Several Seriously Ill
King Charles and Queen Camilla Share Personal Tributes to Their Mothers on UK Mother’s Day
Prince William Honors Princess Diana with Mother’s Day Tribute
UK Economy Stalls in January as Households Cut Back on Eating Out
AI-Generated Singer Becomes Viral Voice for Iranians With New Anthem
London Private Club Founder Plans Exclusive Palm Beach Venue Near Trump’s Mar-a-Lago
Ed Davey Urges Britain to Build Fully Independent Nuclear Missile Capability
What the UK Covid Inquiry Is and How It Investigates Britain’s Pandemic Response
What the UK Covid Inquiry Is and How It Investigates Britain’s Pandemic Response
US Treasury Links British Polo Patrons to Alleged Venezuelan Oil Proceeds Laundering Scheme
Hundreds Gather in London Despite Ban on Annual Pro-Palestinian March
Two Dead and Multiple Students Seriously Ill After Invasive Meningitis Outbreak at UK University
UK Considers Deploying Ships and Mine-Hunting Drones to Reopen Strait of Hormuz
Starmer and Trump Discuss Urgent Need to Reopen Strait of Hormuz Amid Escalating Iran Conflict
Prince Harry and Meghan Markle’s Planned Australia Visit Draws Mixed Reaction From Local Communities
Trump Calls on France and UK to Help Safeguard Strait of Hormuz Shipping Route
Boris Johnson Labels Bitcoin a ‘Ponzi Scheme’, Sparking Debate in Crypto World
UK Considers Targeted Aid for Vulnerable Households as Energy Costs Rise
Stellantis Urges Immediate Review of UK Electric Vehicle Sales Targets
Home Office Reverses Course to Allow Some Dual Nationals to Enter UK Using EU Passports
Reform UK Proposes Replacing Top Civil Servants With Officials Aligned to Government Agenda
Netflix Adds Critically Acclaimed ‘Best Film of 2025’ With Perfect Rotten Tomatoes Score
‘The Sums Don’t Add Up’: UK Farmers Hit by Soaring Costs as Iran War Disrupts Global Supplies
Confidential UK Biobank Health Records Found Online After Researchers Accidentally Expose Data
Trump Urges Britain and Allies to Deploy Warships to Safeguard Strait of Hormuz
Trump Urges Britain and Allies to Deploy Warships to Safeguard Strait of Hormuz
Middle East War Highlights Strategic Importance of Strong UK–Ireland Cooperation
Weak Growth Signals UK Economy Was Faltering Even Before Middle East Energy Shock
Marks & Spencer Tops UK Fashion Retail Rankings as Most Considered Brand
×