26th August 2022
Article 16, again.
Here is this blog in February 2021:
In September 2021:
There are many more.
Like many commentators on Brexit, it feels like I have written sixteen articles on Article 16.
There was a time when every weekend had a Sunday newspaper briefed that Article 16 was about to be triggered.
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And here we go again.
What new can be said?
In some ways, there is not a lot that is new to say.
Triggering Article 16 will not have the dramatic – cathartic – effect that some breathless political and media supporters of the government believe it will have.
A gun is not fired, just a talking shop established.
And the provision cannot be used to dismantle the Northern Irish Protocol.
If you want to read more along those lines. click on the links to the explainers above.
But.
Some things have changed.
And it may actually be wise for the government to trigger the provision.
This is because the United Kingdom is now in the absurd position of proposing primary legislation on the Northern Irish Protocol under the pretence that it is “necessary” for the United Kingdom government to not perform or comply with its obligations under the protocol.
The government raced to putting forward this draft legislation without going down the Article 16 route that was intended to deal with any problems with the protocol.
By actually setting up a formal talking shop on the protocol then there is the possibility of constructive engagement with the European Union, rather than this silly legislative exercise.
Article 16 should have been triggered ages ago – as it would enable structured talks.
The reason one suspects that the government has not triggered Article 16 is that ministers know – or should know – that it will not have the exhilarating effects set out in the government-supporting media.
But it could have beneficial effects – and any safeguard measures would have to proportionate and time-limited.
Article 16 may therefore offer a way of choreographing a resolution of the perceived issues over the Northern Ireland Protocol.
Of course: this assumes that our government under the incoming Prime Minister wants a solution and is operating in good faith.
Just typing those words makes one realise how unsound such an assumption is.
But.
Structured talks under the Article 16 regime can only be a good thing and the government’s scarce time and resources would be better used in doing this than in pursing the misconceived primary legislation to allow the government to break the law.
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You must feel as if it’s groundhog day, David, with Art 16 yet again.
But one question. From what Truss has been saying, she seem to contemplate invoking ARt. 16, not instead of the NIPB, but merely as a precursor while the bill passes through Parliament. If the NIPB were to become law I don’t know what effect that would have on any Art. 16 discussions then ongoing, but I cannot imagine it would be helpful.
The only reason I can think of for invoking Art. 16 is that it might provide a thin veil of credibility for the highly dubious argument that the NIPB was ‘necessary’ and therefore not in violation of international law. One of the points made against the necessity argument is that the dispute resolution provisions in the TCA have not been exhausted. Perhaps invoking Art 16 is intended to meet that point.
The integrity of the Withdrawal Agreement is surely in part predicated on the United Kingdom Government putting in place customs and other checks on the borders of Britain similar to those the European Union put in place at the end of the transition period.
Those checks not now being in place has made the UK into a smuggler’s paradise.
British businesses are finding it harder to export into the Single Market than their competitors there are finding it to export here so that British businesses are losing sales in the Single Market and at home.
Amazingly, Jacob Rees-Mogg assumed that the EU would, for example, continue to undertake checks on goods in transit across the EU from say Russia to the UK once the UK left the EU.
Any easing of the arrangements set out in the Withdrawal Agreement that might make it easier for, say, snide meat from Russia to enter the Single Market via Britain and then Northern Ireland seems highly unlikely.
Arguably, Sir Keir Starmer QC’s Make (Hard) Brexit Work policy pledge would surely mean putting in place border checks to match those of the EU that Rees-Mogg says would be bad for the UK economy.
Imagine the Tories at the next General Election shamelessly painting Labour as being too hard on Brexit.
“…Those checks not now being in place has made the UK into a smuggler’s paradise….”
As I understand it (albeit from the press/legacy media) customs checks are being carried out in a highly targetted but smaller manner than some would like. Claims by the government are that these checks are more intelligence led.
The old rule of thumb/guidance was that cirac 2% of all goods were checked – that number is now said to be considerably lower.
As opposed to the policy which everyone has, which is “Make Brexit (Hard) Work”
Or perhaps I am too cynical. I suppose it is also possible that Truss intends to invoke Art. 16 in good faith, hoping to reach an agreed solution to NI within the scope of the NIP. But this seems unlikely, certainly if she presses forward with the NIPB as she claims she will.
“…Structured talks under the Article 16 regime can only be a good thing and the government’s scarce time and resources would be better used in doing this than in pursing the misconceived primary legislation to allow the government to break the law….”
Absolutely spot on – really good blog-post.
What’s changed. The Politics with a big ‘P’.
A new Prime Minister who wants to be seen to be doing something.
Up until now everyone has believed that Article 16 was what has been described in the legacy media as the ‘nuclear’ option – it is no such thing.
It is a safeguarding action that can be unilaterally invoked given certain conditions in the whole NIP including the preamble.
The government have, apparently been building up significant amounts of data in terms of goods traffic before & after the NIP came into existence – it’s highly unlikely (though possible with this lot) that it will be invoked in a trivial manner.
As you say, formally triggering Article 16 and it goes into the meat grinder – it really will concentrate minds to hopefully resolve the NIP to all parties agreement.
So we have a new PM, wanting to prove herself ( being presumptious ) – if no compromise found , dispute resolution ultimately goes in the NIP to the CJEU/ECJ.
One supposes that each side has gamed what will then happen – much then depends on fast tracking – it’s only then does it get interesting – let the fireworks begin – as they were always going to.
It strikes me that THE EU should invoke art. 16.
Annex 7 obliges both sides to come to the table:
“The Union and the United Kingdom shall immediately enter into consultations in the Joint Committee with a view to finding a commonly acceptable solution”
which – I’d have thought – would effectively take the wind out UK govt’s current proposed direction of travel.
Excellent idea!
To invoke Article 16 requires a reason to, that is unambiguous and, clearly stands up to the Joint Committee and eventually the dispute resolution process overseen ultimately by the ECJ/CJEU.
I don’t think many on the UK side really expect the ECJ/CJEU to rule in favour of the UK – call me cynical or what.
Thing is, if the ECJ/CJEU do ultimately rule against the UK ( irrespective of reason) it gives the UK government/PM of the day all the evidence it needs of a biased judgement.
Both the EU & UK know this and timing of any judgement is quite important in respect of the NIP bill going through parliament (currently) plus, much will depend on how the unionists will react to a negative ruling against the UK by the ECJ.
At this point in say 6-9 months down the line, geo political events might be very different & a more political bandage or elastoplast will, likely be engineered.
This is the way of the UK /EU world going forwards in my view.
Nuclear options/trade wars are certainly feasible, but if, as predicted, the light’s are out in say the Eurozone or UK, then the last thing anyone wants is a tradewar – it’ll be the least of anyone’s worries.
“To invoke Article 16 requires a reason to, that is unambiguous and, clearly stands up to the Joint Committee and eventually the dispute resolution process overseen ultimately by the ECJ/CJEU.”
I’d suggest that the UK’s current belligerent posturing – and the attendant risk to the entire deal that the EU itself has confirmed exists – provides just such an unambiguous reason.
I’ve thought this for a while. If the government is claiming “necessary” then by triggering Article 16 they could argue something along the lines of “there must be a necessary, just look we had to trigger Article 16”. I’m surprised they haven’t triggered it sooner.
Ultimately there must be a boundary between the UK and the EU.
Logically, it would be on the Island of Ireland. If it is not to be there. it can only be at sea, either in the Irish sea (between the British mainland and Ireland) or in a western extension of the English Channel (between the geographical British Isles and the European mainland.
The latter may be more acceptable from a practical viewpoint but would require politicians (and commentators) to think outside the box!
“a boundary… in a western extension of the English Channel (between the geographical British Isles and the European mainland). The latter may be more acceptable from a practical viewpoint but would require politicians (and commentators) to think outside the box!”
Ireland is sovereign and Ireland is in the EU. Are you seriously suggesting trampling on Ireland’s sovereign rights of association?
Forget about it, it ain’t happening. But the fact that you think it might happen speaks volumes about a certain British mindset.
It’s almost as if it’s an insurmountable dilemma.
If only there was something – we could call them a Single Market and Customs Union – to make the problem go away…
Makes you wonder if the Conservative Party and its funders see the ‘insurmountable dilemna’ as more of a permanent opportunity than a problem.
In this formulation, the real problem is that it goes away. Taking their victorious electoral coalition with it.
There seems to be agreement betweeen you and Joshua Rozenberg. Is this true and if so is it positive?
Does this mean there is some point in going down this route or is it that there is nowhere else to go so let’s get on with it?
Or, as it will only open up another talking shop, and the UK has been out-flanked each time it has tried to get its way, this is the best option, kicking the proverbial can.
Or is it a case of the jury still being out and with a new PM it might be a way to get the show back on the road to some form of sanity.
I’m on the side of the can kicking option.
But isn’t part of the point of the (so called) NIPB that it is a subterfuge to grant the government wide ranging “Henry VIII” powers that are not restricted solely to the NIP?
I suppose Truss can at least say that it wasn’t she who agreed the customs border/Protocol. Perhaps she’s in an easier position than BJ to say we’ve got to solve this problem.?
David if this gets agreed and out of the way what’s next on the EU /UK legal front? Or are we then all friends?
It would be a step forward if the UK government could set out in black and white, with detailed supporting evidence, the nature of the “serious economic, societal or environmental difficulties that are liable to persist, or [ ] diversion of trade” that the application of the NIP is purported to have created, and the nature of the “appropriate safeguard measures” that the UK intends to take which are “strictly necessary in order to remedy the situation”. Rather than just moaning and sabre-rattling and prevaricating.
Until they have done that, the UK government is not even out of the blocks on the situation of necessity required in international law to breach the NIP, i.e. that the breach is the only way to protect an essential interest of the UK against a grave and imminent peril, and does not serious impair another party’s essential interest.
One wonders how many of the politicians and journalists offering a view on “triggering” Article 16 have ever read its simple words and those in Annex 7. Or indeed what “necessity” entails under Article 25 of the International Law Commission’s Draft Articles on State Responsibility.
There is also the NI political dimension that needs to be considered. A factor that may be influencing a change of approach from NIPB to Article 16 is that the DUP hasn’t played ball after the passage of the NIPB though the Commons. The party was supposed at the very least to have agreed the election of the Speaker for the Assembly by now. This was seen as a prelude to the DUP agreeing to devolved government this autumn before time ran out and new elections were required. The fact that the DUP hasn’t delivered may be inducing a bit of a re-think among top Tories. I also take a bit of comfort from the fact that amid all their jingoistic bombast both Truss and Sunak have spoken of “fixing” the Protocol rather than “scrapping” it. And there is some stuff to fix and in the right circumstances this might be done using the rubric of Article 16 (including an issue that has just arisen in relation to steel).
So long as the latest stooge on the front bench who has been shoved forward to defend the indefensible remembers to include either of the magic words “necessary” or “necessity”, it is believed that the Peelers won’t slap the darbies on ‘im and cart ‘im off to the clink.
“Just the place for a Snark! I have said it twice:
That alone should encourage the crew.
Just the place for a Snark! I have said it thrice:
What I tell you three times is true.”
That the UK should trigger Article16 to be able to have constructive engagement with the EU is an interesting concept.
Having transplanted all sovereignty rights from the UK to Westminster then why not have some extended constructive engagement between Westminster and all parts of the UK as to how this returned sovereignty should be handed around ?
Perhaps the SNP could support a Conservative Government on point one to get to point two ?
It would at least provide an interesting talking point.