The discussion about the Northern Ireland Protocol Bill is not new. Back in 2020, in the Internal Market Bill, the UK Government brought forth its volition to unilaterally amend the conditions of its Brexit agreement with the EU and several pieces were written then on the issue. In the last few days, the UK Government has returned to the issue which had in the meantime been frozen, by issuing though this time also a legal statement meant to embalm this initiative to the wider compliance of the UK with international law. Albeit the statement’s reference to the doctrine of necessity in international law is not convincing, the issuing per se of such statement, must be heralded as good news. In 2020, when the UK announced that it was ready to revise the Northern Ireland Protocol, the Secretary of State for Northern Ireland stated that the Bill would indeed break international law in a limited way. This time, the Secretary of State has held that the proposed Bill is inside the ambit of international law. Along these lines, it is good that the UK has moved from a position of indifference vis a vis international law to one that tries to take it into account.
The Government’s Legal Statement and the role of international law in UK parliamentary practice
All constitutional lawyers are aware of Kelsen’s pyramid when it comes to sources of law, placing constitution on the top, then international law and then domestic legal norms. Yet, in common law traditions, this pyramidical structure is not rigid. Even if a country has signed and ratified an international agreement, Parliament can come afterwards and legislate in negation to the agreement’s terms to the extent that the latter do not mirror customary international law. Only recentlythe UK Government has brought forth its aims to revise the Human Rights Act 1998 in a way that will not necessarily mirror the provisions of the European Convention on Human Rights. In that sense, the UK Government’s position to simply want to unilaterally modify parts of the Brexit agreement is completely enabled from a common law perspective. Yet, it is interesting that in the case of the Northern Ireland Bill, the Government did not decide just to lay it before the Houses of Parliament, but has proceeded to also adorn it with the mantle of an international law justification.
This, I argue, should be seen as signalling a new, major role for international law in the UK constitutional order, a role which includes more parliamentary engagement. So far, the Government has showed reservations towards traditional international law norms, for example the non-refoulement principle, by expressing its will to leave the European Convention on Human Rights in order to be able to fly refugees to Rwanda. The Northern Ireland Protocol Bill itself states in section 19, that the Government may enact regulations for the purposes of dealing with matters related to the EU-UK agreement. This can create a situation where, under the pretext that it aims to deal only with matters relating to the agreement, the Government, bypassing Parliament, could find itself modifying the agreement without parliamentary consent.
Yet, albeit this scenario is possible, in the meantime, the legal statement put forth by the Government in the current Northern Ireland Bill, seems to be sending a more engaging message on how Government views the role of Parliament in cases involving the amendment of international agreements of a political gravity. Taken on an isolated basis and in the background of the recent UK stance towards international law, this governmental position seems inexplicable. It is better understood though once it is compared vis a vis another constitutional legal order which shares similar features.
Like the United Kingdom, Israel is a country that does not have a Bill of Rights nor another single written document that serves as a constitution. A number of Basic Laws serve the function of a constitution in the country. When it comes to the ratification of international treaties, for years, the traditional Israeli stance has been aligned with the UK one, meaning that the task falls on the Government with no parliamentary involvement. Contrary to some continental law countries where treaties are being brought to the Parliament in the form of a Bill, in order to be ratified and form part of domestic law, in Israel, the Government is not obliged by statutory law to bring treaties for ratification before the Knesset, the Israeli Parliament. In the UK, the involvement of Parliament is by default. Encapsulating a constitutional convention in place already from 1924, the so called Ponsonby rule, the Constitutional Reform and Governance Act 2010 stipulates that the UK Government must place before Westminster any international conventions for 21 days before it proceeds to their ratification. In this period of 21 days, Parliament has the ability to bring through the form of a motion, objection to the ratification of a particular treaty. In this case, the Government must refrain from doing so. Cardinal on this respect is the work of the House of Lords International Agreements Committee which looks at Treaties for the purpose of facilitating parliamentary scrutiny.
In Israel, the Knesset does not have such ability to block the ratification of treaties. Yet, the ratification of major international documents like the International Covenant on Civil and Political Rights, has been brought before the Knesset. Moreover, relevant to the discussion on Parliament and the Northern Ireland Protocol, in Israel, there has developed a constitutional custom obliging the Knesset to have a final saying on certain international agreements that have such an acute political gravity. This constitutional custom is now embedded in the Knesset Rules of Procedure. There, mirroring the relevant Government Rules of Procedure, the Knesset Rules of Procedure state that the Minister who wishes to do so, will bring to the Knesset an international treaty awaiting ratification. The text of the treaty will be set before the Members of the Knesset for 14 days, after which the Government can proceed to ratification. In that sense, the role of the Knesset in the procedure is not generally required and the ratification of the treaties is an action reserved to the Government. At the same time, the Knesset Rules of Procedure state that when it comes to agreements and treaties of importance, the Government shall bring the international agreement and treaty also to the ratification of the Knesset. Moreover, the Knesset Rules of Procedure explicitly state that this stipulation of active Knesset involvement was triggered in October 2020, when the Knesset ratified Israel’s peace treaties with the United Arab Emirates and with Bahrein.
The Knesset involvement should be seen as part of a process that has historical depth. Its sources can be traced back in the late 70s, when the Knesset did ratify the peace treaty with Egypt. In the 90s, discussions were held on whether the Knesset should ratify any peace agreement reached with the Palestinians and in 2005, the Knesset did get involved in the ratification of the amendments caused to the peace treaty with Egypt on account of Israel’s disengagement from Gaza. The active Knesset role in these cases sends a powerful message to the extent that parliamentary intervention compels the Government to bring forth an international law narrative on why revision of these agreements is necessary by Parliament. In the case of Israel and the unilateral amendment of the terms of the Peace Treaty with Egypt, an advisory opinion of Adv. Miri Frenkel-Shor, the Legal Adviser of the Knesset Foreign and Defence Committee, played this international law background role.
In the United Kingdom, on a statutory basis, Parliament does not have to give its consent to important political agreements. Yet, following the Supreme Court judgment in Miller, this also starts to change. When it comes to Free Trade Agreements in the post-Brexit era, UK Parliament Committees both in the Commons as well as in the House of Lords, have pushed for and have eventually achieved an exchange of letters with the Government, where the latter undertakes the stipulation not only to reserve discussion time for these agreements in the relevant parliamentiary Committees before their enactment, but also to inform Parliament on the different negotiation rounds before these agreements are signed.
The Government’s Northern Ireland legal statement plays exactly the same role. It signals how Parliament must take international law into account not only when an international agreement of political gravity is to be concluded in the first place, but also when its terms are to be revised. This brings the UK constitutional reality closer to the practice endorsed by the Knesset in Israel. Whereas generally it is English law and Westminster leaving its constitutional footprint on other common law jurisdictions in territories and States belonging to the Commonwealth or having fallen in the past under the British Mandate, in this case, the Israeli precedent seems to signal the opposite. Quite importantly, it signals that in the judicial dialogue between jurisdictions, prior history or the cardinal role one jurisdiction has played over another, does not mean that this dialogue is to be led only in one direction. And this is a very democratic and welcome message.
Solon Solomon is a Lecturer in the Division of Public & International Law, Brunel University London and the co-Director of the BUL International Law Group
(Suggested citation: S. Solomon, ‘The Northern Ireland Protocol Bill: A comparative perspective on the parliamentary role in the amendement of major international agreements’, U.K. Const. L. Blog (21st June 2022) (available at https://ukconstitutionallaw.org/))