30th October 2021
Article 16 of the Northern Irish protocol is the news, again.
There are breathless news reports that it is about to be ‘triggered’.
The use of ‘to trigger’ as a verb – like, say, ‘to activate’ – makes it sound rather dramatic.
And certain political and media types are indeed building up a sense of occasion.
The triggering of article 16 is becoming a political virility test.
One can imagine a minor character in a science fiction or superhero comic with ‘Article 16 has been triggered’ as their one line of dialogue, with the next frame of the story the horrified or bewildered faces of the major characters.
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And perhaps Article 16 will be triggered – and that the government really, really means it this time.
Perhaps the triggering of the article will precede some political deal between the United Kingdom and the European Union.
But the one thing that will not directly happen is anything that formally warrants this giddy excitement.
For, as this blog has averred (here, here and here), triggering Article 16 means that the United Kingdom and the European Union enter into discussions in respect of ‘safeguarding’ measures for the Northern Irish protocol.
And any safeguarding measures have to meet strict and objective requirements and cannot have any wider or longer effect than necessary.
Article 16 is a useful feature of the protocol – but it really does not, on its actual terms, live up to this star billing.
Well, as far one can see when as looking at this as a lawyer.
Of course, the usual proviso of any law and policy commentary is that law and politics are not the same thing.
And parties can say they have met with triumph and disaster unconnected to any actual process, and those in politics and media will chap or jeer accordingly.
But.
Looking at Article 16 calmly it is difficult to discern how it corresponds with the current political hyperventilation.
Someone, somewhere is missing something.
After Trigger comes the fall pic.twitter.com/FQsRUKRzRS
— 𝕡𝕖𝕨𝕥𝕖𝕣 𝕥𝕒𝕟𝕜𝕒𝕣𝕕 (@pewtertankard) October 29, 2021
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To me this whole “trigger” rhetoric is quite obvious: It’s the ancient war rhetoric and nostalgia the UK is stuck in. The constant war movies, the constant war references, the constant “Blitz spirit” mentions, the stupid Blitz/Covid comparisons (“granddad still went to the office while the bombs were raining down”), I could go on. Adversary politics instead of negotiation, coalitions and cooperation.
Valid point in my view. There is a serious problem in the UK of an unwillingness to move on from war rhetoric, and to embrace a more honest view of the world.
“Don’t touch that switch Dougal “
I read in the Irish Times (and I believe the Daily Telegraph has a report behind its firewall) that Lord Frost is suggesting the ECJ is not the problem, but the disproportionate application of direct EU law in NI is, and that this could be resolved by ‘replication’ of laws in the UK. Does anyone have insights on this and what it might mean?