I hear the noble Lord and will revert to him in due course. It is not possible to equiparate international law with domestic law. There is simply not enough of it and it is too
dependent on facts and circumstances which will not apply from case to case to come up with a precedent which would allow noble Lords who have spoken in these terms to speak with such certainty.
Should I address the noble Lord, Lord Purvis of Tweed, at this stage? At an early stage in these proceedings, he spoke about the nature of the plea to necessity. I say again that it is very different from the interpretation of a domestic statute. Of course in international law there are similarities with domestic legislation, and of course in international law, often being a matter of paction, there are similarities with the law of contract. But it cannot be equiparated with, to use a metaphor that emerged from the Cross Benches, a contract for the sale of sausages. It is too complex and too fact-specific. That point was continued by the noble Baroness, Lady Suttie, my noble friends Lady McIntosh of Pickering, Lady Altmann and Lord Kirkhope of Harrogate, my noble and learned friend Lord Garnier—I am sure that I have missed others out; as I said, my undertaking is to engage with your Lordships to assist them in moving this forward—and, I decipher from my scrawl, the noble Lord, Lord McDonald of Salford, speaking from the Cross Benches. The assertion that the Government’s position breaches international law is too bold and lacking in nuance. I submit that we are entitled to proceed on the basis that we anticipate that the protocol will be operated in a manner that reflects the unique and serious circumstances against which it was drawn up.
The doctrine of necessity was approached by the noble Baroness, Lady Crawley, and my noble friend Lord Hannay of Chiswick in particular, who equiparated—if I misattribute this to my noble friend, I apologise to him and will happily correct it—invocation of the doctrine of necessity with the law of President Putin. Far from it: there is authority for the existence of a defence of necessity dating back at least to the early 19th century. It was recognised by the International Court of Justice in 1997 in a case between Slovakia and Hungary regarding a dam on the Danube. It formed part of the International Law Commission’s articles on state responsibility, drawn up in 2001, as the Government’s statement on their legal position notes. In 1995, the Government of Canada justified steps taken to protect the Grand Banks fisheries on the basis that it was necessary to do so. If fisheries in the Atlantic are important, how much more so is the extension of democratic rights across the whole of this United Kingdom?
Invoking the doctrine of necessity does not repudiate international law or the international rules-based order. It is part of the international rules-based order. The noble Baroness, Lady Kennedy of The Shaws, my noble and learned friend Lord Clarke of Nottingham, the noble Lord, Lord Bach, and my noble friend Lord Tugendhat stated that the Government were undermining the rule of law and that this constituted a flagrant breach of the rule of law. Again, by invoking the doctrine of necessity, we operate within the framework of international law and—