Brexit discussion thread XIV (Please read OP before posting)

Your point being?

You miss the point, I think. If he acts unlawfully according to UK law, he can be restrained by the UK courts (as he was when he attempted to prorogued Parliament, to take the example that you yourself chose). The Withdrawal Agreement has been enacted into UK law, so if he (for example) purports to invoke Art 16 improperly, people can challenge that in the UK courts.

The point is that if Johnson tries to invoke Art 16 illegally, he'll be stymied by the UK courts, just as he was when he tried to prorogue Parliament. He may get lots of headlines about traitor judges, but that's no use to him; he's supposed to be the guy who gets Brexit done. If his efforts to get this particular aspect of Brexit done collapse in welter of court proceedings and parliamentary shenanigans he is damaging his own unique selling point, and calling attention to his own failure to achieve the one thing he promised he could achieve. He doesn't want that.

As you say, he doesn't care about much, but he does care about optics. And this would not be good optics. The man you told you he had got Brexit done turns out not to have got Brexit done, and to be unable to get Brexit done. There's no positive, Johnson-friendly spin you can put on that.

Alternatively this is exactly what Johnson wants. He obviously doesn't want to trigger A16, either because he knows the damage it will cause or that it really is the last threat he has and once done he is out of cards.

We saw that play out when he agreed the deal, where he continually threatened a No Deal yet at the very end accepted a deal that he originally said was fantastic but now says he awful.

What he wants more than anything is an enemy to fight against. The brave hero fighting for England, Britain and the little man. The brave and bold Boris standing up against the liberal elites. The EU bureaucrats, the stuff Judges, the remoaners. The rights and wrongs don't matter. It is the story he can spin that is the important bit.

So the Tories slide further in the polls. And this week's vote on triple lock pension. Coupled with the economic reports from impact of brexit.

I'd pose the question, do they really care ? Have they just been trying to push the boat as far out as they can. They try to install loyalists into positions of power be it independent institutions or media orgs like the BBC and offcom for future shaping of the narrative. But they're managed to prise billions out the tax payer into loyalists and relations. So do they actually care about the polls now. It's just a case of furthering whatever is left main goals achieved which is to make people very wealthy of brexit or whatever other crisis. Luckily for them covid popped up first so opportunity came much quicker than the death by a thousand asset cuts of brexit. But with the covid money they can make hay on the asset self off UK wide.

Creating and compounding wealth project accomplished. Polls .. who cares

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

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.

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.

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.

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.

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.

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.

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

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