Category: European Union Law and Policy

What is this “Article 16” that the United Kingdom is threatening to trigger?

14th September 2021

The Brexit minister David Frost has said that he is considering triggering article 16 in respect of the ongoing discussions between the United Kingdom and the European Union.

 

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This sounds all very portentous.

But what does it actually mean?

What is article 16?

The blogpost below is based on an extract from an earlier longer explainer posted on this blog back in January 2021 (when the European Commission clumsily and perhaps inadvertently seemed to trigger article 16 and then promptly untriggered it).

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Let’s begin with what is an ‘article’.

One of the blessings of Brexit is dealing with ‘articles’ of international legal instruments – most famously article 50 of the treaty on European Union.

The word ‘article’ is somehow grander than the more mundane ‘section’ and the everyday ‘clause’.

Indeed articles tend to be more self-contained as legal provisions – sometimes like micro legal instruments within macro legal instruments like treaties.

And article 16 – together with a dedicated annex – is such a micro legal instrument.

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Article 16 is part of the Northern Irish protocol, which in turn is a protocol to the withdrawal agreement.

Instruments within instruments within instruments.

Article 16 provides in its entirety (and you should read every word, as they will matter): In essence: the ‘if [x] then [y]’ here is ‘if [there are certain difficulties in the application of the Northern Irish protocol] then [appropriate safeguard measures can be taken]’.

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The article is entitled ‘Safeguards’ – but straight away you will see that the provision is itself subject to its own safeguards – and this is important because, as you can see, what is or can be a ‘safeguard measure’ is not defined.

First.

In paragraph 1, the trigger for the safeguards has to be a serious situation that is likely to persist.

Second.

It then provides that any safeguards will be ‘restricted’ to what is ‘strictly necessary’ for the purpose of remedying that particular serious situation.

Third.

And ‘priority’ shall be given to what measures that cause the least disturbance.

One, two, three.

So: triggering article 16 does not mean anything goes.

Anything Frost proposes will have to meet these three substantive tests.

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And there is more.

In paragraph 2, any imbalances caused by the uses of the safeguards can be addressed with counter measures: so the article is not a unilateral tool.

If the United Kingdom takes measures under article 16 then the European Union can take countermeasures too.

Paragraph 3 then states that a prescribed process has also to be followed, as set out in an annex.

Strictly speaking: triggering article 16 does not trigger the right to take safeguard measures, but triggers a process that may in turn lead to such measures.

The annex supplements the substantive conditions on the use of Article 16 safeguards with procedural protections (and, again, this provision should be read in full): In essence: notification, talking shop, delay for a month, adoption of measures, further notification, regular consultations on measures, reviews of the measures.

Even in the event of ‘exceptional circumstances’ under point 3 of this annex, there is still a procedure to be followed.

Safeguards within safeguards within safeguards, and so on.

Article 16 ain’t no weapon – it is a remedial tool.

It really is not something to ‘threaten’.

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In summary: invoking article 16 is not to be done casually or by mere oversight.

There are many substantive and procedural conditions to be fulfilled before it can be invoked.

And unless those conditions are met, then article 16 measures are not available.

Even when all the conditions are met, the scheme of the article and the annex is that there would be a collaborative review-and-consultation to the use of the measures.

All this is – or should be – obvious from the title of the article: ‘Safeguards’.

And not Reprisals.

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High slogans and low reality: the point and counterpoint of Brexit

13th September 2021

Like a bouncing ball we go from the high slogans to the low mundane – or grim – reality of Brexit.

Take, for example, this from businessman and former politician Archie Norman:

In translation:

– taking back control was and is ‘pointless’, and

– leaving the single market was and is ‘pointless’.

For what Norman here describes as “pointless” is the direct, natural and necessary consequence of both taking back control and leaving the single market.

What he describes is Brexit in its everyday reality.

This is what the slogans really meant when converted to actual practice.

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Here is another example, for the great immigration law expert Colin Yeo:

In essence: if the French don’t cooperate, then the home secretary’s’s ‘turn around’ migrant boat policy is not only vile and inhumane – it cannot actually work.

Again, this is the reality of taking back control.

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Both the examples above are crash-courses in the value of multilateralism in a complex world – and of the banality of autarchy.

By taking back control the United Kingdom has lost the means of exercising control – whether it is the terms of trade, or its borders, and so on.

And this is not a surprise.

For taking back control exists on the plane of slogans and not on the messy plane of reality of the world in which we live.

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The strange death of ‘euro-scepticism’

12th September 2021

Once ‘euro-scepticism’ was a big thing in British politics.

Parties and politicians, as well as the media, competed with each other to be disdainful of the European Union project, but without calling for outright departure.

Anyone with an absolute view on the merits of the United Kingdom’s membership of the European Union were regarded as marginal if not eccentric – whether ‘pro’ or ‘anti’.

The conservative party, for example, had a steady stream of defections to the liberal democrats of ‘pro-EU’ politicians, and the referendum party came and went.

But about ten years ago ‘euro-scepticism’ disappeared, to be replaced by those seeking outright departure.

Why did this happen?

Well, one possibility is – paradoxically – the European Union stopped pushing for more powers and competencies.

To an extent ‘euro-scepticism’ was reactive: a response to treaty after treaty of expansion: Maastricht, Amsterdam, Lisbon.

And once the treaties stopped, then ‘euro-scepticism’ stopped – for it did not serve the purpose of a brake.

There still has not been a major European Union treaty since Lisbon, signed in 2007.

In respect of major treaties, the European Union has been in a steady state since Lisbon.

And there has been no real taste for one.

(Indeed, the fiscal pact of 2012 was done outside the European Union framework.)

And when the movement to ever close union ended – at least at treaty level – then British ‘euro-scepticism’ flipped into Brexiteering.

There were, of course, many other factors around ten years ago that contributed to Brexiteering.

But one cause must have been the collapse in ‘euro-scepticism’.

Few in 2016 wanted to ‘be in Europe but not run by Europe’ – as the old slogan said.

And ‘euro-scepticism’ was never a positive message such would win a binary referendum.

Not many would vote Remain because it offered only mild opposition to the European Union as opposed to Leave’s explicit hostility.

Polarisation on the European Union question did not suit the tradition of ‘euro-scepticism’.

But.

It can also be averred that ‘euro-scepticism’ had been successful – that is, if success is taken to mean a sequence of secured outcomes.

The United Kingdom had secured the benefit of opt-outs – from the Euro and freedom of movement to justice and home affairs.

On this basis, it is hard to say ‘euro-scepticism’ was a failure.

But opt-outs can only take you so far without touching upon the ultimate questions of membership.

By 2015 there was little left to opt out from.

The ‘re-negotiation’ was a flop.

So perhaps ‘euro-scepticism’ died in part because there was no longer anything left that it could achieve.

And also perhaps because that before 2015 it had been too successful.

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Looking back at David Cameron’s Bloomberg speech of 2013 – and what it tells us about what then happened with Brexit

31st August 2021

When does the story of Brexit begin?

Some would say that the story of the departure of the United Kingdom begins with the founding of the European Economic Community itself, or even of the European Coal and Steel Community.

For even then the supranational approach that the United Kingdom was to find so repugnant was obvious (see here).

Others can point to the accession of the United Kingdom to the European communities in 1973 or (a view with which I have sympathy) the treaty of Maastricht of 1992.

More recent start dates would be the referendum of 2016 or the timing and circumstances of the Article 50 notification in 2017.

It depends on the nature of the story you want to tell.

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This post looks at another starting-point.

The ‘Bloomberg speech’ of then prime minister David Cameron in January 2013.

Cameron, of course, is now little more than a pantomime villain in the story of Brexit, reduced to texting ministers and officials for commercial favours while the audience groans and hisses.

And the prospect of reading – still less sitting through – an old Cameron speech may not be a welcome one.

But.

This 2013 speech, when taken together with the ‘renegotiation’ of 2015-16, shows fault lines that later shaped how Brexit evolved in practice, and it is worth looking back at.

An edited version of the speech is still on the government website (with some brief ‘political’ content removed) while the Downing Street YouTube channel has the speech in its entirety.

To the extent the speech is remembered now – if it is is remembered at all – it is because it contained the promise by the head of the then coalition government of an ‘in/out’ referendum, in the event that the conservatives won outright the next general election.

And that announcement is of significance as, unlike many political promises, it was carried out.

But also of significance is the framing of the announcement – what the speech did and did not say.

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One premise of the speech is that the referendum would be tied to a ‘renegotiation’ which, in turn, envisaged treaty changes for the benefit of all member states.

It would be this new ‘settlement’ that would then be promoted as part of the referendum campaign.

To the extent that there is a fundamental critique of the European Union it is in terms of ‘sovereignty’ and the ‘gap between the EU and its citizens’.

And to the extent that there is a detailed practical critique it is about the ‘unfair’ relationship between Eurozone members and member states such as the United Kingdom that were not part of the Eurozone.

The speech has structure and coherence – and, after the experience of Theresa May and then Boris Johnson, it is a strange feeling to read a prime ministerial speech that has structure and coherence.

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But.

There is a lot missing.

There is not a single mention of immigration – even though by the ‘renegotiation’ of 2015-16 this had become a perceived political priority.

This is because although the Eurozone crisis had begun, the perceived migration crisis (and the rapidly increasing domestic political support for UKIP) was in the future and as yet unknown.

Some now contend that Brexit was always about immigration and migration and ‘taking control’ of our borders – yet the issue is not mentioned once in the major speech that initiated the political process that led to the referendum.

There is also not a mention of ‘freedom of movement’ or indeed any of the ‘four freedoms’ that the European Union aver are integral to the single market.

For Cameron and the United Kingdom, the single market could be discussed and extolled without any reference to the foundational principles of that market.

It was almost as if the same single market was different things to the United Kingdom and to the rest of the European Union, described in different ways, and with each side talking past the other.

Ireland gets one brief mention – and is bracketed with the United Kingdom for having border controls against the rest of the European Union.

But there is nothing at all about how the single market and shared membership of the single market and the customs union meant there was no need for a regulatory or customs border on the island of Ireland.

There is also nothing about how shared European Union membership provided a solution to the hard political problems of the Irish border (and similarly there is no mention of Gibraltar either).

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And there is a complacency about treaty changes – an assumption that the fundamental reforms to the European Union that could only come about by amending the treaty texts would be an easy task in a tight time frame.

The referendum was to be in the ‘first half’ of the next parliament – in effect the entire process of renegotiation and referendum would need to take place between 2015 and 2017.

Looking back from 2021, we now know that there has been no new European Union treaty at all – the last general treaty is still that of Lisbon in 2007 – and there is no appetite for a new treaty and the politics it would entail.

But without treaty changes there was a severe limit to what could be achieved in a negotiation, especially against a strict deadline.

And so – unsurprisingly – the ‘renegotiation’ was damp and squibby.

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The Bloomberg speech revealed a lack of realism about what could be achieved from the beginning of the ‘renegotiation’ process, with expectations raised that could not be fulfilled.

And this had a significant political consequence.

For, from the very beginning of the referendum process, the government made no positive case for the United Kingdom to be part of the European Union as a matter of principle.

The government’s case was instead to be for the United Kingdom to remain part of the European Union on renegotiated terms and as part of a new overall settlement.

But when those renegotiated terms fell flat, and the new overall settlement failed to come into existence, then the government had nothing positive to argue and campaign for.

Indeed, given the lacklustre government campaign – directionless after the failure of the ‘renegotiation’ – it is remarkable that the referendum was as close as it was.

The government’s own run-up to the referendum, from the announcement of the referendum onwards, had been misconceived.

And you can see why this was by reading what was in – and what was not in – the Bloomberg speech of January 2013.

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What the CE/UKCA and the GDPR issues tell us about the pointlessness of Brexit

  28th August 2021

The strongest argument for Brexit, if not the only one, was that it would enable the United Kingdom to have laws and policies regardless of our obligations under the treaties of the European Union.

Many – including you – will probably not think of that as much of an argument – and, indeed, it is not much of an argument.

But at least it is an argument which is internally coherent: as a member of the European Union the United Kingdom was subject to its European Union treaty obligations, and as a non-member, we are not.

To get from [x] to [y] could only be done by the means of Brexit.

The other arguments do not even make sense as a matter of internal logic.

For example, the argument from sovereignty did not make sense: the United Kingdom had sovereignty all along, else it would not have been able to make an Article 50 notification and repeal the European Communities Act.

And the argument of practicality also does not make sense, for even though we are no longer subject to its European Union treaty obligations, it appears that there is not any advantage to having this new freedom.

For example: we are now free of the CE regulatory regime – but our businesses need for us to continue.

And, as this blog recently averred, there is no good reason for the United Kingdom to diverge from the European Union data protection regimes – and many good reasons for us not to do so.

So the United Kingdom did not need to do Brexit to regain sovereignty (as we already had it and never lost it) nor did United Kingdom need to do Brexit to make any substantial policy changes, as we do not seem to need to change policies.

As is often said, the post-Brexit United Kingdom really is the dog that caught the bus.

Yes: the United Kingdom can now have laws and policies regardless of obligations under the treaties of the European Union.

But there does not seem much point.

What a pointless thing to have done.

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The folly of diverging from the GDPR just because we can

26th August 2021

Like a dog that caught the car, the United Kingdom government is wondering what to do with Brexit.

Today’s offering, reported in the Telegraph is overhauling or replacing or something to do with GDPR – the European Union’s detailed data protection regime.

The flavour of the suggestion is in these tweets:

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The proposal has the usual signs of superficial thinking, with the ‘ending red tape’ and ‘row with Brussels’ lines that are the substitute for any serious policy thought.

In fact, the rows will not be with Brussels – the European Union and its businesses will be at ease with the United Kingdom erecting yet another non-tariff barrier against the interests of British businesses.

The rows instead will be with those British businesses, which will now have two lots of red tape to negotiate instead of one.

This is so bleedingly obvious that it really should not need typing out.

None of this is to say that the GDPR is perfect legislation – it certainly is not.

But compliance with one technical and complicated regime is onerous enough – multiplying such regimes just because we can is folly.

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Ministers and their political and media supporters will clap and cheer at this exercise in nose-cutting in spite of a face.

The European Union, like bemused household cats, will just stare at the spectacle.

It is all rather silly, and rather depressing.

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The United Kingdom’s digital economy will not so much turbocharged but torpedoed.

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Decaf Nation – a passing anecdote about Brexit

21st August 2021

Someone somewhere – I think P. D. James – says that no coffee tastes as good as it smells.

And given that most people drink coffee not for the taste but for the (perceived) caffeine kick, some people do not seem to see the point of decaffeinated coffee.

(Such people include me, for what it is worth.)

But some people do, and it appears that they will currently be disappointed if they go into a chain of well-known coffee shops.

For in those coffee shops there is no decaffeinated coffee.

I established this in two branches of the same well-known coffee shop near where I live – and not with loaded questions but with a general ‘how come’ when told they had none.

Both times the answer was: Brexit.

(The first mention was prompted by overhearing someone else being told there was no decaf, the second was prompted by me inquiring generally.)

The second person who told me this I did not know, but the first – the manager of the most local branch – is as undramatic and unpolitical person as you can imagine.

I had – and have – no idea if this is the true reason for the lack of stock.

Perhaps it is a coffee shop urban legend.

Perhaps it is the desperate excuse of a desperate area manager.

But it was the explicit, resigned reason given in two separate shops, independently of each other.

I mentioned the first incident on Twitter – and it seemed to affirm what others had experienced.

https://twitter.com/davidallengreen/status/1429007481762615296

So: either there was a number of people lying, or there is a mass delusion, or a number of people are experiencing shortages and these shortages are being attributed to Brexit.

A quick infantile response to this is to say ‘so what’ and dismiss it as a ‘first-world problem’ (which may affect, of course, coffee growers not from the first-world.)

Perhaps it is: access to decaffeinated coffee may well be up there with guacamole and vegan bacon as the least of all our concerns.

But.

If this is true – and it certainly is the sincere belief of honest people – then it provides a micro-example of the inconveniences and misadventures that unsurprisingly will follow the United Kingdom ceasing to be part of the European Union single market.

There were always going to be some effects – and this could just be one.

And perhaps in the medium term, the supply lines will adjust, and decaffeinated coffee shall again be available in chain stores.

If so, then – other than passing complaints – Brexit will have taken effect without the huge backlash that many – especially Remainers – predicted.

On the other hand, if this inconvenience is added to others, and then to others, and they accumulate then – maybe – voters will see the point of the United Kingdom being part of the single market – and politicians could respond accordingly.

What will practically shift minds will be certain things being unavailable – even minor things – and people attributing the shortage to the explanation.

The taste of Brexit, like coffee, may not be as good as what some people expect it be.

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(And for what it is worth, I support the United Kingdom being part of the single market but no formally rejoining the European Union – which some of you will say is the political equivalent of liking decaffeinated coffee.)

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In the meantime…

…it looks as if we will now go further into Brexit with a caffeinated, heightened sense of nervous energy.

And what could go wrong with that?

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No, Brexit cannot be ‘annulled’ or ‘cancelled’

14th August 2021

There are a couple of tweets on Twitter that are being heavily retweeted and liked saying that because of some court case or another, Brexit can be ‘annulled’ or ‘cancelled’.

These tweets are false – and those earnestly retweeting and liking the tweets are being given false hope.

The tweets are by knaves – accounts that either do or should know better.

And those knaves are taking those opposed to Brexit for fools.

There is a fancy that it is only the likes of Boris Johnson and Dominic Cummings and Nigel Farage and other Brexiters lie about Brexit.

But lies – and liars – are on the Remain side too.

And one can hardly complain about ‘fake news’ and ‘post-truth’ when one is also happily promoting social media posts that say false things that you want to believe are true.

That is not the opposite of Trump-like politics – but its application.

Brexit is a historical and legal fact.

There is no mechanism by which any court anywhere could order Brexit to be undone.

There is no court order that can undo Brexit.

There is no court of competent jurisdiction that can undo Brexit.

The only way the United Kingdom can (re)join the European Union is by the process under Article 49 (the one that comes before Article 50).

And such an application, if it is ever made, will not be quick – not least that the European Union would want to see a settled political consensus in the United Kingdom in favour of (re)joining.

It will be a slow slog – and may not even be in the lifetime of many reading this post.

Fantasy, of course, is more appealing for a supporter of the United Kingdom than this dull, distant prospect.

But that is all that these knavish tweets and tweeters are offering: fantasy.

Not all lies are written on the side of a big red bus.

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The urban legend of the boiled frog, Loki’s branching timelines, and public policy after Brexit

29th July 2021

I am still putting together my detailed piece on the Lugano Convention issue.

This is about how the European Commission has effectively vetoed the United Kingdom’s late (and panicked) application for participation in an arrangement for enforcing judgments in European Union and EFTA member states.

The piece looks at the causes of the current predicament – but also at the consequences.

The ‘so what?’ of any law and policy situation.

And sometimes the ‘so what?’ is not urgent and immediate – it is not eye-catching and headline-prompting and retweet-generating.

But it is serious all along.

And one only notices when it is too late.

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Here the usual analogy is with the poor boiling frogs of urban folklore.

In reality, of course, the frogs, like other animals, would escape if they can when in ever-hotter water.

But a good analogy will never die, even if immersed in boiling water.

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Another analogy – which is currently uppermost in the minds of fantasy and comics geeks (like me) – is that of branching timelines.

In Loki – a wonderful piece of television – the conceit is that there is an omnipotent and omniscient bureaucratic authority that monitors and regulates the timelines of the universe(s).

From time to time (pun intended), a thing happens on a timeline of a universe that means that there are stark deviations to that timeline.

And when those deviations in turn mean that there are significant new branches of reality, the bureaucrats-in-uniform intervene to correct the timeline.

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Brexit is a new branching timeline in the history of the public policy of the United Kingdom.

Our public policy is now diverging from European Union public policy – slightly at first, and only becoming obvious over time.

But over that time, there will be many multiplying differences and discrepancies.

Those gaps will become wider and deeper.

But we are not in Loki.

There may not be some big-bang ‘nexus’ event to alert everyone to the huge gaps that will soon exist.

And we also do not have a time variance authority to step in to return us to the ‘sacred’ timeline from which we have departed.

We do not have the fantasy of some omnipotent and omniscient authority (and still less an omnibenevolent one).

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This lack of a big-bang ‘nexus’ event is something, perhaps, that those campaigning for the United Kingdom to (re)join the European Union will not have as an advantage.

There may be no one spectacular sudden public policy failure to to which they can point.

Just a thousand inconveniences and misadventures, which will be endured and resented, but that will not mobilise and motivate a political movement.

We will be stuck with it.

We will be like a frog, but not one able to jump from boiling water

Instead, we will be a frog trapped in a bottle of our own making

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Exclusion from the Lugano convention – is this the legal cost of political toxicity?

28th July 2021

I am currently putting together a piece on the United Kingdom’s exclusion from the Lugano Convention, following Brexit.

The convention provides for the enforcement of judgments in European Union and (all but one) EFTA states – in essence, a judgment of a court in the United Kingdom can be enforced in Italy or Denmark and so on.

Without the convention, enforcement of a domestic judgment is less easy – and far more expensive and time-consuming.

The United Kingdom is seeking to re-join the convention from outside the European Union – but the European Union is effectively vetoing the application.

See this CNN thread here:

https://twitter.com/lukemcgee/status/1420302117705768961

One thread in this sequence struck me – and my upcoming piece will be an assessment as to whether such a serious charge is valid:

https://twitter.com/lukemcgee/status/1420304587576205315

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If there is validity in this charge then this is indeed a concrete – and consequential – example of the ‘moral hazard’ of which this blog has previously warned.

Such infantile politics must have seemed very clever at the time – with claps and cheers from political and media supporters – but now the effects could be manifesting.

What is less clear is whether this is a serious legal problem as well as a political failure – will it make much difference in legal practice?

Or is its legal significance overblown – event if it is a political embarrassment?

I will post a link to my piece in a day or two when it is published.

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