As Article 16 of the Protocol is in the news, a quick thread.
This is Article 16.
By paragraph 1 the Article applies only if there are “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”.
These are broad terms where there is obviously much scope for disagreement. NB on “diversion of trade” it is arguable (though no more - also arguable the other way) that that term shouldn’t extend to trade alterations that are inevitable consequences of the Protocol.
If the UK government decides that those conditions apply, it can take “appropriate safeguard measures”. No limits on what they are *but* they must be limited in scope and in duration to what is “strictly necessary” to remedy the situation.
And priority must be given to measures that least disturb the functioning of the Protocol.
So if the UK invokes Art16 it must be satisfied that the proposed measure is “strictly necessary”, including in scope and duration, (not just “expedient”) and that no other measure that has a less disturbing effect on the Protocol would do.
Next: procedure. Annex 7 requires 1 months notice save in “exceptional circumstances requiring immediate action” (implausible if you have flagged up the problem a few months ago but not done anything earlier).
During that month there must be consultations aimed at finding a mutually acceptable solution.
If measures are taken by the UK, then the EU can take “strictly necessary” and “proportionate” “rebalancing measures” to remedy the imbalance that the UK measure has caused in rights and obligations under the Protocol.
Could a UK decision to invoke Art 16 be judicially reviewed in the U.K. courts? Remember that because the Protocol is part of UK law, invoking Art 16 will affect domestic law rights and duties.
The problem with any claim is likely to be that the question of whether Art 16 applies raises complex questions of fact and judgment on an essentially political question. Judicial review on such questions is limited, all the more so given the international relations context.
More likely if the UK government ignored the 1 month notice provision: procedural error is always easier for courts to tackle.
If the EU thought that Art 16 didn’t apply, it could (in addition to rebalancing measures) invoke the Withdrawal Agreement dispute resolution mechanism.
That involves an arbitration panel whose ruling binds both sides. In cases of urgency, ruling in 6 months.
No obvious role for the ECJ, since the terms of Article 16 are not questions of EU law (on which the arbitration panel has to refer to the ECJ).
In the end, use of A16 is likely to be a question where the courts stand back: political resolution far more likely than legal resolution.

• • •

Missing some Tweet in this thread? You can try to force a refresh

Keep Current with George Peretz QC

George Peretz QC Profile picture

Stay in touch and get notified when new unrolls are available from this author!

Read all threads

This Thread may be Removed Anytime!


Twitter may remove this content at anytime! Save it as PDF for later use!

Try unrolling a thread yourself!

how to unroll video
  1. Follow @ThreadReaderApp to mention us!

  2. From a Twitter thread mention us with a keyword "unroll"
@threadreaderapp unroll

Practice here first or read more on our help page!

More from @GeorgePeretzQC

14 Sep
For electoral reform specialists, this is a problem with the German (and Scottish and Welsh) system, as explained here. Essentially, that system fills ~1/2 the seats by FPTP, and then allocates the other half (list seats) so as to achieve an overall proportional result.
This is how it worked in Scotland last time: the SNP wins almost all the FPTP seats (fans of FPTP: note) but gets hardly any of the list seats, so as to bring its overall seat total to just under 50%.
But FPTP is easily capable of throwing up even madder results than that: in a multi party system, a party may win almost all the FPTP seats with ~30% of the vote, efficiently spread around, with the opposition split.
Read 9 tweets
12 Sep
This is very informative and authoritative about what has been going on: well worth a read.
(To summarise my view in one tweet: if you combine (a) turning a fundamentally political question into a question of constitutional law with (b) a constitution that is ludicrously impossible to change, the result is, inevitably, a complete mess.)
(See also: gun control and restrictions on campaign spending by billionaires.)
Read 4 tweets
11 Sep
Thoughtful and well-informed piece by @tconnellyRTE about the current stand-off over the Protocol. Worth pulling out and emphasising his point that the current U.K. government doesn’t seem to have thought beyond the July Command Paper: a point I can illustrate.
This is what Tony tells us.
My example to illustrate that comes from @jamesrwebber’s and my article on the UK government’s proposal on A10 (State aid) - which generally supported its position that A10 needs to be looked at again in both sides’ interest, and is over the top given the TCA subsidy provisions.
Read 7 tweets
10 Sep
Two points one can make about that thought. 1. The doctrine of unrestrained Parliamentary sovereignty makes “constitutional shields” very hard: any later (or even the same) Parliament can ignore any “shield” written into statute.
Indeed, there was precisely such an attempt at a shield against an arrangement like the Protocol: s.55 of the Taxation (Cross-border Trade) Act 2018 (an ERG-backed amendment).
Despite the assertion in the Protocol (with an eye on s55) that NI remains part of the U.K. customs territory, it probably isn’t.
Read 7 tweets
6 Sep
Somewhat unfortunate take on the Art10/State aid issue. It is obvious that that issue isn’t one that generates resentment in NI: because the core problem with it is its unpredictable and potentially serious application to GB.
Moreover, it’s an area where subsequent developments have made the protection to the EU that it offers largely unnecessary (and to the extent it’s still necessary it could much better be resolved in other ways).
Treaties are to be complied with and promises to be kept: but there’s nothing wrong, if your promise now seems over the top in the light of what has since happened, in trying to get the promisee to agree to release you from it (or tweak it).
Read 6 tweets
6 Sep
My problem with this is that I don’t think that judicialising the issue helps: lying is a political problem that can and should be resolved politically.
(I say “judicialising” because this - and other proposals flying around - effectively put the Speaker/fact check service into a judicial role.)
Several reasons for that. One is that - on occasion - lying is politically justified. (Examples in foreign affairs/defence/economic policy come to mind.) But the question of when they are justified is IMO not a suitable judicial question: it’s political.
Read 8 tweets

Did Thread Reader help you today?

Support us! We are indie developers!

This site is made by just two indie developers on a laptop doing marketing, support and development! Read more about the story.

Become a Premium Member ($3/month or $30/year) and get exclusive features!

Become Premium

Too expensive? Make a small donation by buying us coffee ($5) or help with server cost ($10)

Donate via Paypal Become our Patreon

Thank you for your support!

Follow Us on Twitter!