This is a very timely and important contribution to the debate on what, exactly, Article 16 allows the U.K. (or, indeed, the EU) to do. Some key points.
This para makes the point that A16 does not on its face permit derogation from express legal obligations. It makes the point that there are different types of derogation: a complete derogation, or eg a derogation from an obligation matched with compensation for not performing it.
Art 16 is not a renegotiation clause. It is about *temporary* solutions, to last for as little time as possible.
(It follows that it is not and cannot be a vehicle for addressing complaints about the structure of the Protocol or the inherent nature of its obligations: eg the role of the ECJ or the obligations in relation to State aid, customs, and goods regulation.)
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The authors rightly IMO point out that the EU can invoke dispute resolution if it thinks Art 16 has been misused.
(See also domestic judicial review in the U.K. courts and action which the EU has an unfettered right to do anyway eg terminate the TCA on 1 year’s notice.)
This is I think a persuasive reading of Article 16.
On some textual aspects: the authors flesh out a point I have made to the effect that the “serious difficulties” can’t be inevitable consequences of the Protocol itself: -
This is an interesting point: the difficulties must be due to the Protocol, so you have to compare them to a counterfactual without the Protocol. If the difficulties would have existed anyway, because of Brexit, A16 won’t help you.
This is on the nail on “trade diversion”: the things that the current government is pointing do probably don’t count.
Two interesting points on “strictly necessary”. 1. The measure must be capable of remedying the difficulty, without disturbing the GFA.
2. If harmonisation (eg of SPS standards) is a solution to the “difficulties” then that is the route that must be taken: in such a case Article 16 measures can’t be “strictly necessary”.
The article shows why, as told to @pmdfoster, the current government is hunting around for rather a lot of legal advice at the moment.
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