London Daily

Focus on the big picture.
Friday, Oct 24, 2025

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
Three Men Arrested in London on Suspicion of Spying for Russia
Porsche Reverses EV Strategy as New CEO Bets on Petrol and Hybrids
Singapore’s Prime Minister Warns of ‘Messy’ Transition to Post-American Global Order
Andreessen Horowitz Sets Sights on Ten-Billion-Dollar Fund for Tech Surge
US Administration Under President Donald Trump Reportedly Lifts Ban on Ukraine’s Use of Storm Shadow Missiles Against Russia
‘Frightening’ First Night in Prison for Sarkozy: Inmates Riot and Shout ‘Little Nicolas’
White House Announces No Imminent Summit Between Trump and Putin
US and Qatar Warn EU of Trade and Energy Risks from Tough Climate Regulation
Apple Challenges EU Digital Markets Act Crackdown in Landmark Court Battle
Nicolas Sarkozy begins five-year prison term at La Santé in Paris
Japan stocks surge to record as Sanae Takaichi becomes Prime Minister
This Is How the 'Heist of the Century' Was Carried Out at the Louvre in Seven Minutes: France Humiliated as Crown with 2,000 Diamonds Vanishes
China Warns UK of ‘Consequences’ After Delay to London Embassy Approval
France’s Wealthy Shift Billions to Luxembourg and Switzerland Amid Tax and Political Turmoil
"Sniper Position": Observation Post Targeting 'Air Force One' Found Before Trump’s Arrival in Florida
Shouting Match at the White House: 'Trump Cursed, Threw Maps, and Told Zelensky – "Putin Will Destroy You"'
Windows’ Own ‘Siri’ Has Arrived: You Can Now Talk to Your Computer
Thailand and Singapore Investigate Cambodian-Based Prince Group as U.S. and U.K. Sanctions Unfold
‘No Kings’ Protests Inflate Numbers — But History Shows Nations Collapse Without Strong Executive Power
Chinese Tech Giants Halt Stablecoin Launches After Beijing’s Regulatory Intervention
Manhattan Jury Holds BNP Paribas Liable for Enabling Sudanese Government Abuses
Trump Orders Immediate Release of Former Congressman George Santos After Commuting Prison Sentence
S&P Downgrades France’s Credit Rating, Citing Soaring Debt and Political Instability
Ofcom Rules BBC’s Gaza Documentary ‘Materially Misleading’ Over Narrator’s Hamas Ties
Diane Keaton’s Cause of Death Revealed as Pneumonia, Family Confirms
Former Lostprophets Frontman Ian Watkins Stabbed to Death in British Prison
"The Tsunami Is Coming, and It’s Massive": The World’s Richest Man Unveils a New AI Vision
Outsider, Heroine, Trailblazer: Diane Keaton Was Always a Little Strange — and Forever One of a Kind
Dramatic Development in the Death of 'Mango' Founder: Billionaire's Son Suspected of Murder
Two Years of Darkness: The Harrowing Testimonies of Israeli Hostages Emerging From Gaza Captivity
EU Moves to Use Frozen Russian Assets to Buy U.S. Weapons for Ukraine
Europe Emerges as the Biggest Casualty in U.S.-China Rare Earth Rivalry
HSBC Confronts Strategic Crossroads as NAB Seeks Only Retail Arm in Australia Exit
U.S. Chamber Sues Trump Over $100,000 H-1B Visa Fee
Shenzhen Expo Spotlights China’s Quantum Step in Semiconductor Self-Reliance
China Accelerates to the Forefront in Global Nuclear Fusion Race
Yachts, Private Jets, and a Picasso Painting: Exposed as 'One of the Largest Frauds in History'
Australia’s Wedgetail Spies Aid NATO Response as Russian MiGs Breach Estonian Airspace
McGowan Urges Chalmers to Cut Spending Over Tax Hike to Close $20 Billion Budget Gap
Victoria Orders Review of Transgender Prison Placement Amid Safety Concerns for Female Inmates
U.S. Treasury Mobilises New $20 Billion Debt Facility to Stabilise Argentina
French Business Leaders Decry Budget as Macron’s Pro-Enterprise Promise Undermined
Trump Claims Modi Pledged India Would End Russian Oil Imports Amid U.S. Tariff Pressure
Surging AI Startup Valuations Fuel Bubble Concerns Among Top Investors
Australian Punter Archie Wilson Tears Up During Nebraska Press Conference, Sparking Conversation on Male Vulnerability
Australia Confirms U.S. Access to Upgraded Submarine Shipyard Under AUKUS Deal
“Firepower” Promised for Ukraine as NATO Ministers Meet — But U.S. Tomahawks Remain Undecided
Brands Confront New Dilemma as Extremists Adopt Fashion Labels
The Sydney Sweeney and Jeans Storm: “The Outcome Surpassed Our Wildest Dreams”
Erika Kirk Delivers Moving Tribute at White House as Trump Awards Charlie Presidential Medal of Freedom
×