4th October 2021
Another Monday, and another week begins with the government of the United Kingdom saying that it going to do something to show how serious it is about the Northern Irish protocol.
And David Frost, the Brexit minister, is again threatening to ‘trigger’ Article 16.
He may well do so, for this government has done dafter things in respect of Brexit and other matters.
But, as this blog has previously averred, if you actually look at what Article 16 says, you will see that it does not expressly provide for the suspension of the protocol.
It instead provides for a process – slow and deliberate – where the parties to the protocol can discuss measures fulfilling certain strict conditions, with the objective of ‘safeguarding’ the protocol.
Article 16 is not much of weapon.
All because you trigger Article 16 that does not make it a gun.
Maybe the European Union and the United Kingdom will do a deal under the cover of the Article 16 process.
Maybe; maybe not.
But the process in and of itself is not something that is intended to disrupt, let alone dismantle, the protocol.
Article 16 is more of a bicycle repair kit than a Beretta handgun.
*
And what if Article 16 happens and the United Kingdom – either by law or politics – does not get the deal it is seeking?
What is the United Kingdom to do?
Threaten to trigger Article 16 a second time?
Or a third?
What if Frost’s bluff is called – and (yet again) he does not achieve what he is seeking to achieve?
*
The one useful experience that is coming out of this situation is that – one hopes – United Kingdom ministers will be more careful about what international agreements they sign in this post-Brexit period.
An international legal instrument is not akin to a press release to be signed (off) so as to get Brexit done.
Entering into this agreement was a serious commitment, but the United Kingdom government was not serious.
But, just as inexperienced business people may sign one shoddy contract but never sign another one, perhaps the next generation of politicians – both those who make the decisions and those who hold them to account – will take the exercise of entering into a deal more seriously.
*
Unless and until the European Union agrees to amend the protocol, the United Kingdom is stuck with the withdrawal deal it signed.
This is the practical reality of ‘getting Brexit done’ and ‘taking back control’ – the United Kingdom is perhaps more reliant on goodwill than before.
This legal dependency is the hidden, inconvenient truth of Brexit – and Brexiters could not have in substance made us any more reliant on the European Union if they had tried.
Brexit did get done – but by giving away control and not by taking it back.
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Can someone explain why Corbyn (who had the polls) allowed the dissolution in 2019? That was to purpose of the fixed term act – to prevent the government from calling an election (dropping the writ) when it suited them.d
Polls! – what do they matter when your political programme is correct.
I suspect the simple answer is that he thought he could win despite the polls.
I suspect that’s the biggest flaw of the fixed term parliament act – it will be a rare opposition leader who, when challenged to a general election, is going to admit in public that they think they cannot win
Thank you for another very illuminating article. I found myself wondering, in response to you question ‘what if Lord Frost doesn’t get what he wants?’ whether he really knows what he wants, other than to satisfy his masters through some kind of crowd-pleasing tough-guy performance which deflects attention away from the infuriatingly inconvenient detail of the agreement?
As one PM repeatedly said: Brexit means Brexit.
But which takes precedence the NIP or the Good Friday agreement? The NIP is clearly undermining the GFA.
The DT is reporting that Lord Frost said, “the Government has now drafted full legal texts to override the protocol” and “under article 13 (8) of the agreement states that it can be superseded with superior arrangements.” He concluded, “The long bad dream of our EU membership is over. The British renaissance has begun.”
How?
Correct, “how?”.
Perhaps through inborn, uncontrollable, hubris producing delusions of grandeur, of omnipotence?
>The NIP is clearly undermining the GFA.
Surely it was *the absence of* an NIP that would undermine the GFA. That was the point, or at least a large part of the point, of it.
Except superior arrangements require the EU consent. The EU is not even prepared to renegotiate since the protocol is not even fully implemented yet! How can they demonstrate societal difficulties etc etc.. when it’s not even fully in force!
“The NIP is clearly undermining the GFA”
No, Brexit is undermining the GFA. The NIP is the best solution negotiators were able to come up with to mitigate Brexit’s effect on the GFA.
Can you come up with a better solution? Where would YOU put the border?
In the run up to Christmas we’ve already got:-
– a fuel crisis
– warnings that the normal range of toys and food treats that make Christmas more “special” for lots of us just won’t be available
– higher supermarket prices, more restricted range of goods and less availability
– much higher energy prices.
A bit daft to add any more instability into the sytem surely?
Lord Frost keeps on threatening to tell his mum that some people are being mean to him, but has he yet particularised (a) any serious economic, societal or environmental difficulties, or diversion of trade, being caused by the Protocol; (b) what appropriate safeguard measures he proposes the UK to take; (c) why those particular safeguard measures are strictly necessary to remedy the situation (compared to any other measures, or none); and (d) how his proposed measures will cause least disturbance to the functioning of the Protocol (ditto). No? Oh.
“What do we want? Appropriate safeguard measures, restricted in scope and duration to what is strictly necessary, and least disturb the Protocol! When do we want them? After a one month consultation period!”
For some reason, some elements of the British press continue to mistake this bicycle repair kit for a bomb.
If Frost believes the Article 16 threshold has been broken then he should already have notified the EU and entered into dialogue about this under the terms of the Agreement he himself negotiated.
On triggering Article 16 any EU retaliation has to be proportionate so most tariff free trade will have to continue which looks like a mistake on Barnier’s part.
Because of the GFA, the EU are unlikely to introduce tariffs within Ireland. However GB exporters to mainland Europe may be in for some additional costs and checks.
I have always factored in a 5% risk of armed conflict between GB and EU and the way this episode is panning out reinforces my fears.
To get the benefits of the TCA you had to sign the Protocol, It looks now as if you always intended to ditch the Protocol whilst still having the benefits of the TCA in terms of tariff free trade in goods.
I see that once again this government has thrown its rattle out of the pram because the EU will not renegotiate a protocol that
a. Our government insisted upon…
leading to
b. Our government rushing it through without thinking it through…..
leading to
c. Our government trying everything they can to get it rescinded as they realise they’ve made a complete and utter mess of it…..
leading to
d. Our government making themselves and us a total laughing stock across most of the world.
Unfortunately, a government with a majority of 80 can do pretty much as it pleases. Heaven help us all.
Scarier and scarier.
Thank you (I think!).
Possibly Lord Frost is just banging an anti-EU drum for the party conference. All to be quietly forgotten once our distorted version of reality returns.
Perhaps I haven’t been paying attention but I get no feeling that the majority of the NI population are at all bothered by the small niche inconveniences of the protocol’s operations. The DUP politicians need to get their own back on Johnson for unceremoniously dumping them in 2019. The “sovereignty” obsessives (Frost in particular) feel the need to reassemble their particular vision of what a nation state is.
But are the people most affected actually at all bothered?
As usual an outstanding comment DAG. And sadly, as usual, the public will neither take notice, nor understand weather this Brexit government triggers Art.116 or not – and as usual the tories will lie about the implications and consequences. Despair comes to mind. What does it take for the English electorate to wake up?
from good soldier Svejk:-
“After debauches and orgies there always follows the moral hangover.”
Otherwise Violet Elizabeth Bott had the right idea.
Or, there really is no hope.
So it’s time to look a little further ahead and, perhaps, examine the potential consequences of our actions.
It would be unhelpful to say “Think the unthinkable” because everyone reading David Allen Green’s blog posts is perfectly capable of thinking through the consequences; and we’re up against a wilful refusal to think, rather than an intellectual handicap, in Frost – athough I do not rule the latter out, in any member of the current candidate.
If I were a practising solicitor – and I am profoundly grateful that I am not, nor am I qualified to be – I might now be rehearsing the difficult task that solicitors face in advisng a client who refuses to confront the consequences of their actions.
So: what are the measures available to the EU?
Apologies, that should read ‘Cabinet’, not ‘candidate’: I’ve been running interviews today.
Well, in Northern Ireland, the Protocol sets out the procedure to invoke Article 16 and allows the other side to implement “rebalancing measures”. I doubt either side wants border infrastructure, but you could imagine measures (such as additional checks and certifications) being implemented away from the border.
More widely, I understand the Commission is warming up EU member states for the possibility of taking action against the UK, which it says is not fully complying with the agreements. There are rumblings like this – https://www.euronews.com/2021/10/05/paris-demands-brussels-gets-tougher-on-london-over-brexit-fishing-rights – and this – https://www.volkskrant.nl/nieuws-achtergrond/nu-londen-brexitafspraken-blijft-negeren-bereidt-brussel-zich-voor-op-het-ultieme-ultimatum~b91f92f3/ – and suggestions that for example UK exporters could face additional trade barriers, and UK researchers could be frozen out of EU programmes, and the French keep mentioning their electricity interconnectors to the Channel Islands and the GB mainland