What is The Doctorine Of Necessity?

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The Government have decided that they’re going to throw out parts of the Northern Ireland protocol in order to “Get Brexit Done”

As a reminder, they’ve been attempting to get Brexit done for 6 years and have only succeeded in gaslighting the UK public, throwing out multiple workable deals (including Johnson’s “Oven Ready one) and are now on the cusp of breaking International law

But it’s okay though! They’ve wheeled out several minister who all confirm we’re not in fact breaking International Law because Northern Ireland is in “grave and imminent peril” and that means they can do what they want

And what they want to do is override what elements of the N.I Protocol they see fit as well as having new powers over tax and subsidies without having to get EU approval as was part of the previous agreement

The issue is, you can’t just say that your country is at risk of “grave and imminent peril” otherwise everyone everywhere would be using that as an excuse to rip up the rules of international law and do whatever they want.

Attorney General, Suella Braverman, claimed (out loud and in front of people) that this did not break international law as she’s using the “doctrine of necessity” to break the agreement

Well I think we’ll see in this thread that’s a load of 💩

Side Note: I keep meaning to do a thread on Suella Braverman, I think it will be hilarious. Anyway back to the International Law Breaking

So what’s going on? How can she/they do this legally?

An example I saw was:

Say I came to you house, broke in and stole your TV. You take me to court only to show up and find I am the judge. Of course I’m going to rule that I didn’t steal the TV, aren’t I?

That’s where the “Doctrine of Necessity” comes in

What Is The “Doctrine of Necessity”?

The “Doctrine of Necessity” allows you to act in a biased manner if something would otherwise be regarded as illegal or there’s no one else who has the authority to make a decision regarding a case

So, under this doctrine, it’s perfectly allowable for me to be the judge in my own case assuming that all the other judges have left the country.

The history of the doctrine dates all the way back to medieval times to a man named Henry de Bracton who was a cleric and legal scholar

He lived from 1210 to 1268 so to see him being brought up now is somewhat surprising to say the least!

Bracton came up with the basis of criminal intent, wrote about how people could be called a King, the power of the Pope in legal cases and much more – he was very prolific.

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In 1235 he wrote “On The Laws And Customs Of England” in which he set out the basis for the English legal system – no mean feat!

The Doctrine of Necessity is based on a saying of Bracton’s:

That which is otherwise not lawful is made lawful by necessity

The doctrine’s been quite controversial over the years.

In 1842 it was used to justify sailors throwing passengers out of a lifeboat so that it wouldn’t sink

In 1884 it was used to defend two sailors who killed and ate a 3rd member of the crew after they were shipwrecked

And in 1938 in America, it protected a doctor who performed an abortion on a 14 year old rape victim (interesting considering what’s going on there at the moment)

In modern times it was used in 1954 in Pakistan when it was the basis of allowing the Governor-General to dissolve the Constituent Assembly and invoke emergency powers.

Since then it’s been used in a number of Commonwealth countries, often in a way that benefited the ruling party (sound familiar?)

So the Government are using the Doctrine of Necessity as a way to invoke the “State Of Necessity”

(Lot’s of necessities, right?)

So what’s the “State Of Necessity”?

The State of Necessity is a legal ruling under the general principles of International Law where the essential interests of the State could justify a breach of an international obligation

So by saying that the UK is in “grave and imminent peril” because of the Northern Ireland protocol, the Government can use the Doctrine of Necessity to invoke the State of Necessity and therefore ignore the legally binding Northern Ireland Protocol

Still with me?

Good!

Can They Get Away With It?

Now, all this would see well and good, wouldn’t it but as you saw from my earlier example, this is the equivalent of the Government knicking the TV and then being the judge of their own case

The problem is, using the Doctrine of Necessity, there are other people in a position to judge the case – you know, like European and International courts of law…

Another problem is, under Article 25 of the International Law Commission’s Articles on State Responsibility we see a slight flaw in the Government’s plan.

The law reads:

“The plea is unavailable where the rule from which derogation is sought precludes its invocation, where the state invoking necessity has contributed to peril’s onset”

So the Government is claiming that Northern Ireland is in “peril” because of the N.I Protocol, when the Government agreed to, and signed off on, the N.I Protocol therefore directly causing (i.e contributing) to the peril’s onset.

I don’t know how they think they can get away with this one

As a reminder I’m not a lawyer (I know enough to be annoying) and even a cursory Google lead me to this conclusion in a few minutes when reading up on what the laws actually say

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So, what on Earth is going on and why are they pulling this stunt – because it is a stunt

  1. They think the EU will cave into their demands in order to avoid a (further) international incident
  2. They have other goals in mind that they haven’t announced and hope the EU with bargain and meet those (secret) goals
  3. They don’t give a 💩 about the law at all
  4. They’re thick and don’t understand the basics of the law
  5. A combination of 3 & 4

So, you might be wondering “What does it matter if they just go ahead and do it anyway”

Well for starters there will be financial ramifications: fines, penalties, additional tariffs on goods even a trade embargo could all be on the cards here

It’s important to note that the Government can’t just pass this bill even after invoking the Doctrine of Necessity.

The actual bill itself will still need to be read in the Commons and the passed up to the House of Lords and they could hold it up for quite some time if they felt like it (and I think they probably would)

Will the Government go ahead with it?

I reckon they will try

It could be seen as Boris’ “last hurrah” and Liz Truss – who is the face of this don’t forget – could use this as a very firm launching pad for a leadership bid along the “look at me, I stood up to those horrible EU meanies” line of politics

But, until it’s finally passed, this is all a lot of hot air and bluster although I do find it ludicrous that, after an hour of reading, it would appear that I know more about this than the Attorney General does

Maybe I need a career change?

The legal disclaimery bit

I am not a lawyer, anything in this Twitter thread is for informational purposes only and is comprised of information that is freely available in the internet in the sources listed in the next few tweets

Sources

en.wikipedia.org/wiki/Doctrine_…

liquisearch.com/doctrine_of_ne…

blog.ipleaders.in/all-about-the-…

independent.co.uk/news/uk/politi…

Doctrine of necessity – Wikipedia https://en.wikipedia.org/wiki/Doctrine_of_necessity

https://www.liquisearch.com/doctrine_of_necessity

PM could face new EU legal action this week over threat to tear up Brexit deal Northern Ireland Protocol Bill branded ‘reckless’ by majority of Stormont assembly members https://www.independent.co.uk/news/uk/politics/brexit-eu-johnson-northern-ireland-b2099947.html?src=rss

All about the doctrine of necessity – iPleaders This article is written by R Sai Gayatri pursuing BA.LLB from Post Graduate College of Law, Osmania University. This article deals with the doctrine of necessity, its definition, history, exceptions, … https://blog.ipleaders.in/all-about-the-doctrine-of-necessity/

opil.ouplaw.com/view/10.1093/l…

academia.edu/35471400/DOCTR…

en.wikipedia.org/wiki/Henry_de_…

Henry de Bracton – Wikipedia https://en.wikipedia.org/wiki/Henry_de_Bracton

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DOCTRINE OF NECESSITY.docx DOCTRINE OF NECESSITY.docx https://www.academia.edu/35471400/DOCTRINE_OF_NECESSITY_docx

Necessity, State of “Necessity, State of” published on by Oxford University Press. https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1071

britannica.com/biography/Henr…

opil.ouplaw.com/view/10.1093/l…

oxfordbibliographies.com/view/document/…

Editor’s Note: This article was originally published as a series of tweets on the 13th of June 2022. The original thread can be found here

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