Thread by @Panda_Chronicle

There are some helpful informed threads on NIP/A16 over the last few days. I thought it worth adding one point.

First, to recap.

WA/NIP have direct effect in UK law: action by Ministers that breaches them would be struck down by UK Courts. This is under s7a of EUWA 2018.

A16 does not provide carte blanche to overturn NIP. There are conditions: assets.publishing.service.gov.uk/government/upl…

These include:

Difficulties, which are
Serious,
Economic, societal or environmental, and
Liable to persist, or
Diversion of trade.

The application of NIP must have led to them.

As @GeorgePeretzQC points out, it's tenuous to argue that *the role of the ECJ* has led to the difficulties needed for A16 to be used.

But even if HMG does not aim at ECJ directly, but rather at NIP as a whole, then measures taken under A16 also have limits. They must be:

Restricted in scope, and
Restricted in duration
To what is necessary
To remedy "the situation" (presumably the specific difficulty/diversion).

Also, priority must be given to measures "as will least disturb the functioning of this Protocol".

Is it plausible that an abrogation

of the Protocol creates the least disturbance to its functioning? This abrogation would have to be an "appropriate safeguard measure" of limited scope.

Safeguard measures, under NIP Annex 7, are subject to consultations every 3 months in the Jt Cttee. They have an expiry date

and the consultations are supposed to abolish them before then, or limit their scope of application.

As others have said, this is why HMG envisages legislation ahead of any pseudo-invocation of A16. Without it (presumably modifying or removing EUWA, s7a), they will face

real difficulties in UK Courts.

But legislating in that way, to stop the effect of WA/NIP in UK law, would breach Article 4 of WA. ec.europa.eu/info/strategy/…

The House of Lords rejected notorious parts of the Internal Market Bill which would have had this effect. They were worded

so as to have wider effect, allowing incompatibility with any international law, but the purpose was to undermine A4 of WA.

The House of Lords has a particular interest here. It includes large numbers of former Ministers of both main parties, whose careers in govt rested on

routinely keeping their actions within the scope of the UK's international obligations. It's not so long ago that the judicial functions of the House of Lords finally came to an end. And of course Parliament as a whole is swimming in lawyers. It's not just the arithmetic in HOL,

but also its culture that plays against support for rogue behaviour of this sort.

(And, of course, the consequences of breaching WA would be severe, both practically re EU and reputationally worldwide.)

There are therefore reasons to doubt such legislation would be passed.

We can expect HMG to seek a different way out. After a suitable period of bluster, it will probe for new control of the narrative.

It's essential that the opposition parties stop it doing so.

Will they?