The Law and Politics of triggering Article 16

24th September 2021

So the United Kingdom government is again contemplating triggering Article 16.

A recent post on this blog set out what – at law – this means.

In essence: triggering the article means a formal process will begin which may enable the United Kingdom and/or European Union to take ‘safeguard’ measures to protect the operation of the Northern Irish protocol.

On the face of it, Article 16 is not about ‘suspending’ the Northern Irish protocol but about repairing and thereby protecting the functioning of the protocol.

All because Article 16 can be ‘triggered’, that does not make it a gun.

But.

Law and politics are different things.

And sometimes legal processes can be commenced as a cover for (or as an accompaniment of) political manoeuvres.

This possibility was highlighted last week by the sagacious Steve Peers:

Maybe the European Union too would welcome the triggering of Article 16 so that it can move to a position that it may not be to adopt without such political and legal cover.

Maybe.

But even taking this political possibility at its highest, there remains the fact that the Article 16 process in and of itself is not intended to be a route for suspending the protocol but for (as it says expressly) safeguarding it.

And it is against this background we come to yesterday’s infantile tweet from the United Kingdom minister David Frost:

Or: please answer the telephone, please.

As Frost was the United Kingdom politician who actually negotiated and endorsed the agreement containing the protocol, it is an especially pathetic plea.

And those in Northern Ireland who benefit from access to the single market, while the rest of the United Kingdom face all manners of shortages, may not agree that the protocol is having a negative effect.

(And also the ‘clearly’ is also a tell – politicians tend to use the word when a thing is not clear.)

But the first sentence of the tweet looks as if the government is seeking to frame the issue as meeting the seriousness criterion for triggering Article 16.

Maybe they will.

Maybe.

*

If the United Kingdom government triggers Article 16 – and the United Kingdom government has done dafter things regarding Brexit – there will no doubt be claps and cheers.

And – and this should not be discounted – the Article 16 process could result in a political deal.

But what is not intended to happen is that the process, by itself, leads to the suspension of the protocol.

And if that is what the United Kingdom government is banking on, then this will turn out to be another needless misadventure in the story of Brexit.

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8 thoughts on “The Law and Politics of triggering Article 16”

  1. Not sure what Boris expects to achieve – or if there is any point to his moanings. A rational leader might seek to encourage NI to make its own arrangements. A sort of ErExit.

  2. Yes, these ‘oven-ready’ deals seem to be not so nutritious as the properly prepared kind!

    Given that Johnson fought and won an election in which this deal figured heavily, and, as you say, (now) Lord Frost was indeed the key negotiator, any attempt to say that it’s not what we wanted is not likely to be taken too seriously in Brussels or Dublin. The Commission has been negotiating deals of this type for some 60 years; the Legal Service knows very well how they work and any pleas for special treatment (on the grounds of total incompetence on the UK side?) will be weighed carefully against the negative effects that could spill over into other Treaties.

    Johnson does not need the Ulster votes. I would be very surprised if he fights to the death for them. But given the intellectual capacity and proven (in)competence of his government, nothing is impossible.

  3. Brexit is a cult. I am sure some backers (such as Crispen Odley) made a packet from it, but for the nation as a whole, it is a disaster which will only worsen. If Johnson hadn’t nailed his fortunes to the hard Brexit ship, the obvious solution to the Irish problem (particularly in the light of the “no deal” with the US on trade) would be to align to EU standards, accept the phyto-sanitary arrangements and seek, quietly, to rejoin the customs union and single market (the very things that the Brexiteers claimed were nevere threatened in the first place). We are being governed by a clueless, petulant child with as much vision as a blind man in a pea-souper fog!

  4. The EU would be well advised to do nothing, or at least as little as possible, in response to these deliberate provocations by Frost.

    Good decisions emanate from an accurate assessment of the situation and be aimed at improving it in one or more tactical steps to reach a strategic goal. Only a fool, or the desperate, would make a decision without following T S Eliot’s DIKW hierarchy: data – information – knowledge – wisdom. Each step before “wisdom” in the hierarchy is an opportunity to defer the decision, but Frost appears to anxious to avoid DIKW altogether. Equally, it is as well to be aware of Donald Rumsfield’s “known knowns, known unknowns, unknown unknowns” to which one might add “unknowable unknowns”.

    All decisions once made – good, bad and indifferent, are subject to largely uncontrollable Laws, Theorems and Conjectures: Sir Isaac Newton’s Third Law of Motion demonstrates that every action has an equal and opposite action. Merton’s Law indicates that the decision may suffer from one, two or even all three Unintended Consequences in addition to its intended consequence: a positive but un-calculated serendipitous outcome; a negative outcome additional to the original desired effect and thirdly; and or a perverse outcome contrary to the desired effect. The AJP Taylor Theorem or Macmillan Conjecture posits that history and thus events, tend to be a series of cock-ups rather than conspiracies, (though like paranoia, there are occasions when the persecution is really real, something that Brexiters appear to be particularly subject to). Finally, Stephen Hawking’s Chronology Projection conjecture indicates the laws of physics make time travel impossible, (except at the sub-microscopic level ) which means you can’t go back to the “status quo ante bellum” and start again.

    “Belief”, “faith” and political rhetoric instead guide London’s approach, so I think one can be confident that Frost and the current Administration is likely to fall foul of all four.

  5. Considering the anti Irish “quip” Boris Johnson made when he heard that Leo Varadkar was Taoiseach, (Varadkar!? I thought they were all called Murphy! Haw haw haw.. ) it would be justice to rename Murphy’s Law (that if anything can go wrong it will etc) as Johnson’s Law. It would at least be funny….

  6. Bizarrely & contrary to Frost’s implication, the NIP does appear to be working reasonably well for the majority of people in NI, though perhaps too well for the DUP.

    Aside from dearth of choice in the M&S ready-meal aisle, there are no shortages of fuel, CO2, toilet roll, fruit, vegetables and other necessities which appear to be plaguing the rest of the UK currently.

    It’s hard to see what invoking A16 will actually achieve aside from generating yet more brexity noise and hot air from the usual suspects. But it’s their media mouthpieces which remain a concern. Not one of them, including the BBC, dares to mention the “B” word for fear of upsetting their political mentors.

    I recall Tass had similar problems with the Soviet leadership; but the notion of the UK’s “freedom of the press” when it comes to Brexit seems to be wearing a bit thin.

  7. Does this man really come from diplomacy? To start with, no decent person in ordinary life would say or write «I and my collegues…», let alone in the diplomatic world where words indeed matter as much as content. In Europe (and Frost’s counterparts are Europeans) only troglodytes would say: «Moi et mon épouse» or «Io e mia moglie» or «Ich und meine Frau»

    That apart, it seems logical and pour cause that the EU would welcome the UK triggering art 16 as it would compel HMG (sorry, Your Majesty!) to engage in a diplomatic discourse where the EU negotiators have abundantly proved to outclass their UK counterpart, of which Frost is a fair example. However, the general feeling in the EU is that the framework of the agreement is definately not in question.

    So what? More fried air, more embarrassing shows?

    1. I and my colleagues

      this probably tells us more than we want to know about the man’s arrogance and overweening self-regard.

      He could be the poster-boy for the Dunning-Kruger Effect.

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