Brexit discussion thread XIV (Please read OP before posting)

KildareP

https://www.boards.ie/discussion/comment/118173961#Comment_118173961

I was more highlighting yet another double standard of argument around the NIP. In fact, your response just kind of proves my point.

Because medicines is a consequence of an agreement that you want to see removed, it's this massive societal issue.

But any other major issue is irrelevant because it has no connection to the WA/NIP/CTA and is thus brushed aside.

Medicines is thus nothing but a useful political tool against the NIP.

Akrasia

https://www.boards.ie/discussion/comment/118173689#Comment_118173689

Eh, the if they want NI to have access to the same medical treatments as the UK, then why do they continue to oppose access to abortion services in NI

It would be utterly hypocritical to invoke A16 because of unequal access to health services in NI that are available in the rest of the UK, while those same people are still taking court cases to prevent women from accessing health services in NI that are available in the rest of the UK

Nody

https://www.boards.ie/discussion/comment/118173681#Comment_118173681

Watched it; it's very much hands on and pragmatic. Additional cost in purely tariffs for export from UK to EU? 7 to 9 billions in the first half of the year for UK businesses. That does not include the additional costs from forms; certificates etc. but pure cash into EU country coffers which offsets the UK contributions that EU was suppose to be crying about losing according to brexiteers.

Peregrinus

https://www.boards.ie/discussion/comment/118174093#Comment_118174093

Mmm. That's what he thought about proroguing Parliament too.

First point to note is that the entire WA - not just the NI Protocol and not just Art 16 - has been incorporated into UK law and is enforceable in the UK courts.

Second point to note is that article 5 of the WA requires both parties to act "in full mutual respect and good faith" . So it's a requirement of UK law that the UK government must act in good faith if it invokes Art 16. And don't imagine that the UK courts can't make and act on judgments about the good faith of parties to disputes before them; they can and they regularly do. This is meat and drink to the courts.

Right. Art 16, as we all know, can only be invoked if certain conditions are met. One of this is "diversion of trade". But:

• There isn't actually much evidence that there has been much diversion of GB:NI trade. The UK government has never measured, and still doesn't measure, GB:NI trade and, as they control both sides of that particular border, they are the only people who could. So we don't have any solid "before and after" figures on this. Much has been said about it, but when it comes to evidence that will stand up to scrutiny, there isn't a lot.
• Even if we can establish that diversion of trade has occurred, has this happened because of the NI Protocol, or for other reasons? Most obviously to what extent is it actually the consequence of decisions made by the UK government, after the protocol was negotiated, to maximise regulatory divergence from the EU, repudiate the political declaration that was agreed at the same time as the Protocol, pursue a "Canada-style" deal, etc? There's no doubt that all of these decisions increased the impact of the NI Protocol. So it's not clear that the diversion of trade does in fact result from the application of the protocol, as opposed to resulting from the UK's decision to maximise regulatory divergence in GB.
• This is where the issue of good faith arises. Is the UK really acting in good faith in relying on diversion of trade to justify invocation of the protocol when they in fact have freely and unilaterally chosen to maximise that diversion of trade? Creating or magnifying a problem, and then relying on that problem to excuse you from performing your obligations to other people is not normally seen as acting in good faith.

And that just goes to the question of whether the protocol can be invoked at all. Even if it can, the particular measures that the UK takes must be limited to what is strictly necessary to remedy the situation; they must be those which least disturb the functioning of the protocol; they must be temporary; etc, etc. All this is set out in the Protocol itself. And they must be taken in good faith. So if the UK invokes Art 16 to address the diversion of trade issue rather than some other step (e.g. seeking an SPS agreement with the EU), is that what is strictly necessary? Is it what will least disturb the functioning of the protocol? Is it acting in good faith? All these questions are also reviewable by the courts.

It's hard to discuss these questions in the abstract, since we don't know exactly what grounds the UK will cite as justifying the invocation of the protocol, or what "safeguard measures" the UK will take to address the problems they have identified. But the vaguer the grounds they cite, and the more sweeping the measures they adopt, the harder it will be to persuade the courts that they are acting within the bounds of Art 16, and in good faith.

Reportedly, they have been shopping around London looking for reputable law firms who will give an opinion that the measures they are contemplating tacking will withstand scrutiny in the UK courts and/or in the international arbitration proceedings which the EU will undoubtedly take under the dispute resolution provisions of the WA. And, reportedly, they haven't yet found any who will express that opinion. Hence the recent back-pedalling on invoking Art 16.

J Mysterio

Excellent summation, as always.

Strazdas

https://www.boards.ie/discussion/comment/118173437#Comment_118173437

Johnson can't just trigger Article 16 because he 'feels like it' or as a political or PR stunt in order to keep the Brexit disciples happy. There would have to be sound legal reasons why he wishes to suspend an international agreement and he would have to show them.

fash

https://www.boards.ie/discussion/comment/118174093#Comment_118174093

The measure must be strictly necessary. Johnson can't simply tear to the NIP/refuse to implement any of it.

fash

https://www.boards.ie/discussion/comment/118174468#Comment_118174468

One argument in relation to the diversion of trade point was also that it seems to have be incorporated into the agreement as a hangover from the May backstop & customs arrangement (as a stick by the EU to beat the UK with to hit out at UK bad behaviour) - and that "diversion of trade" relates to trade with third countries only. I.e. there is no "trade" between GB & NI to be diverted in the first place as they are both parts of the same state.

If one googles diversion of trade, it is this concept of trade diversion that pops up.

Another point is that diversion of GB-NI "trade" was foreseen by the UK: (quoting from wiki) during 2019 election, a leaked HM treasury analysis explained some of the implications of the protocol. The (undated) paper said the NI would be cut off from whole swathes of the UK Internal Market, would face shortages and prices rises in shops and would effectively be severed from the UK's economic union.

Also, if this constituted "diversion of trade", then the IM bill would have been superfluous - if one assumes that the purpose for it was to get rid of the Irish sea border.

schmoo2k

https://www.boards.ie/discussion/comment/118174402#Comment_118174402

The abortion difference was not affected by the NIP? But NHS medicines were, so I don't see why it would be hypocritical at all?

schmoo2k

https://www.boards.ie/discussion/comment/118174151#Comment_118174151

I was simply pointing out an example that would be a valid reason to go down the A16 route - IMO it is exactly the type of thing that A16 was put in place for? TBH I am not sure why you think I would want the NIP removed and personalising it doesn't help your argument (I am not sure what it is your even arguing).

Strazdas

https://www.boards.ie/discussion/comment/118176641#Comment_118176641

I've never heard the medicines issue mentioned as a reason to trigger Article 16.

Also, Frost in his speeches doesn't even seem to know the difference between diversion of trade and interruption of trade flows (two completely different things).

Peregrinus

https://www.boards.ie/discussion/comment/118176641#Comment_118176641

Inability to access NHS medicines: is it a legitimate ground for invoking Art 16?

It's obviously not diversion of trade, so you'd have to argue that it's an instance of the only other ground for invoking Art 16: it's a "serious economic, societal or environmental difficulty that is liable to persist".

So, a few questions would arise. What, exactly, is the consequence of not being able to access the particular medicines that are impeded? If the impeded medicines are generics that can be readily obtained from suppliers within the EU, obviously that's not a serious difficulty. On the other hand, if it's a life-saving proprietary medicine that cannot be obtained from any other source, that is.

Next question: is invoking Art 16 the only way to solve the problem? If the EU is offering fixes or workarounds through the Joint Committee and you reject (or refuse to engage) with those and invoke Art 16 instead, you have a problem, because you can only rely on Art 16 to do "what is strictly necessary in order to remedy the situation". If you can remedy the situation without invoking Art 16, then invoking Art 16 is not "strictly necessary".

But suppose the EU doesn't offer workarounds, or the workarounds they offer won't fix the problem? Then I think you probably can invoke Art 16, but it would only justify a very limited measure focussed specifically on the medicines in question, and you'd have to favour measures which "will least disturb the functioning of this Protocol". If you tried to use this as a justification for broad measures to disapply a large chunk of the Protocol, avoid checks on GB-NI trade, etc, as hard Brexiters and the dimmer loyalists seem to want or expect, you'd be shot down in flames.

And of course you'd be required by Annex 7 to the Protocol to enter into discussions with the EU with a view to finding a long-term fix to the problem so that the Art 16 measures could be terminated. In the case of the medicines, if the underlying problem is that the medicines in question aren't yet approved in the EU, you could only rely on Art 16 to justify temporary measures until such time as the medicines could secure approval.

If the ECJ doesn't impact medicines, then triggering Article 16 based on medicines in the hope of renegotiating the role of the ECJ must surely be impossible.

Peregrinus

https://www.boards.ie/discussion/comment/118178739#Comment_118178739

Yes, it is.

If the UK wants to rely on Art 16 to justify adopting a measure by which they unilaterally abolish the jurisdiction of the ECJ in relation to matters arising under the NI Protocol, then they have to argue that the application of the NIP provisions which confer jurisdiction on the ECJ has caused ""serious economic, societal or environmental difficulties that are liable to persist". (It clearly hasn't caused trade diversion.) They're on a hiding to nothing there, since the provisions conferring jurisdiction on the ECJ have yet to be applied at all; no case relating to the NIP has ever been referred to the ECJ, and so far as I know no party to such a case has ever sought such a referral. And if a provision has never been applied, you can't say that its application has caused difficulties.

The pipe-dream of the Art 16 enthusiasts seems to be that, if Art 16 is invoked for any purpose at all, this will lead to discussions in which (a) the renegotiation of the Protocol will be on the table, and (b) that renegotiation will extend not just to the particular provisions of the Protocol that are associated with the Art 16 measures adopted, but to the whole Protocol.

This is wishful thinking of the most counterfactual kind. There is nothing at all in Art 16 to justify these hopes, and no reason to imagine that the EU would indulge them for a moment. Apart from anything else, the discussions take place in the Joint Committee, which has neither the competence nor any mandate to negotiate any variation or amendment to the NI Protocol.

The discussions which Art 16 requires will not be about how to amend the Protocol, but about how to end the temporary measures adopted by the UK under Art 16.

54and56

https://www.boards.ie/discussion/comment/118178755#Comment_118178755

Like most Brexit mantra A16 is an easy line to trot out which those who either don't care or don't have the ability to understand the detail can blindly get behind as one of Brexits many silver bullet / simplistic solutions to complex issues just like "take back control".

The difficulty, as the Tories and Brexiteers in general are finding out, is that such empty rhetoric eventually comes up against cold hard reality and when that happens there's only ever one winner.

BluePlanet

Frost was challenged in a radio interview that the public in NI are not with him, regarding tearing up the NIP.

[i]"In an interview on BBC Radio Ulster it was put to the Brexit minister that "poll after poll" showed the public backed keeping the protocol as it was.

And it was pointed out that a majority of parties in the Northern Ireland assembly supported keeping the protocol – which the UK government has threatened to scrap.

The latest poll conducted for Queen’s University Belfast last month shows support for the protocol growing, with 52 per cent of respondents saying the post-Brexit arrangements are a “good thing” – up from 43 per cent in June"[/i]

But he doesn't agree with the polls, and also indicated that triggering Article 16 doesn't require a vote in Parliament.

[i]"I don't think it's true from the polls I've seen that there's widespread support for the way the protocol is working," he told BBC Radio Ulster.

"There is a division of opinion on the subject and I think one of the things we have learned in Northern Ireland is that it is very important, if you can, to try and proceed by consensus, with cross-community support with the maximum possible of buy-in to solutions and that appears not to be the situation with the protocol at the moment, and we would like to design, to negotiate, to agree something that everybody can get behind.

"We have said, we repeat, that there always have to be some sort of treaty arrangement between the UK and the EU covering Northern Ireland but it's got to be an arrangement that everybody can get behind."

Lord Frost used the interview to re-state his longstanding the position that triggering Article 16 of the protocol and effectively suspending it was a "very real option" and "legitimate". Triggering Article 16 would not require a vote in parliament under the terms of the treaty."[/i]

https://www.independent.co.uk/news/uk/politics/brexit-lord-frost-northern-ireland-b1959217.html

Leroy42

So we are effectively back to the idea that facts don't matter, just personal opinion.

The irony of an unelected bureaucrat ignoring the wishes of the public to rail road through their own wishes seems totally lost on both Frost himself and the media as whole.

Sam Russell

Inflation is quoted at 4.1% in the UK and BoE appears to be about to raise interest rates (currently 0.1%) which is driving GBP up. In two weeks it has gone from 86p to 84.1p against the Euro. It is incredibly volatile.

Strazdas

https://www.boards.ie/discussion/comment/118179773#Comment_118179773

He's speaking as if the Protocol hasn't even been signed yet : "we would like to design, to negotiate, to agree something that everybody can get behind.". These are the type of things that would have been said before the UK signed and ratified the agreement.

Crazy stuff.

Leroy42

What is really crazy is that he isn't pulled up on it. Why doesn't the interviewer ask why did he sign off on the protocol when it had so many holes in it? Why was a consensus in NI not sought prior to signed the deal?

What about having a vote on it now? Wouldn't that answer whether the people in NI wanted it or not? (He will answer that Johnson got a mandate at the 2019 election, to which the reply is clearly then on what basis has Frost got for trying to undo that mandate.)

Who is to blame for the current deal being so poor that it has crumbled so fast, and why didn't he insist on safeguards within the deal to avoid the EU being nasty (which will be his excuse)?

Really simply questions that seemingly nobody is even curious about.

breezy1985

https://www.boards.ie/discussion/comment/118179809#Comment_118179809

Is it normal for Lord's members to be ministers of state ?

Strazdas

https://www.boards.ie/discussion/comment/118179974#Comment_118179974

Observers in the UK have commented that in his head he wishes to go back to late 2017 or so and start renegotiating the whole thing from scratch (despite the fact that it was 'he' who negotiated the Protocol in late 2019).

It's quite bizarre. Johnson and Frost are acting as if they are trying to undo the damage of an agreement that was signed by a previous regime, or even by a different party.

awec

https://www.boards.ie/discussion/comment/118179981#Comment_118179981

It has happened before, Gordon Brown's government had one I think. It is somewhat murky as obviously the House of Commons doesn't ask questions to members of the House of Lords.

roosterman71

Another Brexit benefit - Amazon customers blocked from using Visa credit cards

The issue relates to Visa increasing its credit fees after Brexit. The EU enforces a cap on fees charged by card issuers which is no longer in place.

Leroy42

https://www.boards.ie/discussion/comment/118180135#Comment_118180135

Easily resolved, one would assume. Simply place the same cap that was previously EU rule into the UK law.

But what it shows, yet again, is how much benefit the people of the UK (and the EU as a whole) gets from membership. Mobile phone roaming charges, FOM, musicians, JiT delivery systems. The average man or woman really hadn't a clue what the EU actually did. To many it was simply fat cats sitting in big offices having boozy lunches and working on behalf of their corporate donors.

It appears that that reality was far closer to home than they thought

Igotadose

Like a comment from the interview said, "52% is majority enough to decide issues in the UK."

BluePlanet

He's also taking a unionist narrative that the NIP needs 'cross community consent'.

Right now a majority of Stormont MP's support the protocol. But what if they call a "petition of concern" and then require a majority of both tribes?

https://en.wikipedia.org/wiki/Cross-community_vote

fash

https://www.boards.ie/discussion/comment/118180593#Comment_118180593

Which hits up against the inconvenient facts that:

The existence of NI itself does not have cross community consent;

Brexit didn't have cross community consent;

Triggering A16 / ripping up the protocol doesn't have cross community consent;

Frost never sought cross community consent for his first proposal (the NIP)- nor for whatever he plans to do now.

BluePlanet

https://www.boards.ie/discussion/comment/118180712#Comment_118180712

Well the existence of NI doesn't require cross community consent as such a parliamentary concept did not exist until the GFA.

Anyway, we know the narrative he's parroting and that reveals a possible path he, and Borris with unionists onboard, are taking. Expect to see moves toward giving Stormont a role in the NIP, with a Petition of Concern following.

Don't they have a vote in a few years anyway regarding the NIP? Why not just leave things be till then.