Thread by @GeorgePeretzQC

This article has as its thesis the idea that “triggering Article 16” would require legislation in order to avoid a “clash with the judges”. But it isn’t explained why. telegraph.co.uk/politics/2021/…

The domestic legal position is that, under s7A of the EU Withdrawal Act 2018 (a new section added in 2020 as part of implementing Johnson’s “oven ready deal” on which he won the election) the Withdrawal Agreement is supreme in U.K. law. Including the Protocol.

The effect of that is that, essentially, as matters stand any power exercised by Ministers will be, in domestic law, of no legal effect if it infringes the Protocol. The courts could (and would have to) quash any such measure or declare it unlawful.

However, Article 16 is part of the Protocol. So section 7A would not prevent an exercise of power that fell within Article 16. So if the courts accepted that Article 16 had been lawfully exercised, no problem.

On that, it is generally agreed 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. Read this:-

https://twitter.com/georgeperetzqc/status/1437684304453189633

So what is the current government worried about?

The problem, I suspect, is the current government’s new objection of dogma/principle (take your pick) to the role of the EU Court of Justice in the Protocol. “New” because it was crystal clear that the “great/oven-ready deal” that it negotiated and sold to us included that role.

See Article 12 of the Protocol.

Now comes the problem. Remember (from my embedded thread above) that Art 16 can only be used where there are “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”.

Also remember that Art 16 is limited to “appropriate safeguard measures” that must be limited in scope and in duration to what is “strictly necessary” to remedy the situation.

These are wide and fuzzy legal tests. But they are legal tests and have their limits.

The current government’s problem is that its new objection of dogma/principle to the role of the CJEU cannot plausibly be fitted into Article 16. Where are the “serious difficulties” or “diversion of trade” being caused by its role?

A power may be very broad indeed: but if no reason - or no reason that can be stated with a straight face - can be given for exercising it, you are in trouble (see, in a very different context, the prorogation case).

If the current government wants to legislate to cut down or remove the role of the CJEU, it can’t rely on Article 16: and if it tries, it will face likely defeat in the domestic courts.

Hence the need for legislation: but like the misconceived and ill-fated attempt in the Internal Market Bill, such legislation (repealing or modifying section 7A) would necessarily involve a clear breach of Article 4 of the Withdrawal Agreement.

But NB that the IMB proposal was rejected in the Lords by majorities of around 430 to 160, which suggests that some people in government may be counting rather optimistically if they think the result would be much different.

PS Good thread here on the “EU backs down when faced with threats” theory.

https://twitter.com/Usherwood/status/1447100953451188226