Thread by @GeorgePeretzQC

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.