It seems received wisdom now that the UK will trigger Article 16 of the NI protocol at some point this year. I saw a tweet (below) yesterday from Mujtaba Rahman which suggests this won't happen until early December because the government is trying to get legal opinion to say that what they propose is legal. I noted a few days ago that they are seeking this advice outside the GLD (government legal department) presumably because they don't like what the current GLD advice is.
It will still be a bit of time before Govt notifies EU on A16. Suspect early Dec. Not because UKG thinks negs w/EU might still deliver. It doesn't. But bc it wants to ensure A16 move is as legally watertight as possible - domestically & internationally 1/https://t.co/oEjUnU89Qx
— Mujtaba Rahman (@Mij_Europe) November 7, 2021
If Johnson accepts the external advice (assuming he can get somebody to put in writing that bad faith and breaking international treaties is OK) I expect there will be more resignations from the GLD. I really don't see how it could be otherwise. The head of it, Sir Jonathan Jones, stepped down last year over the same issue. His advice over the Internal Market Bill was ignored and we felt he had to go.
A Cambridge professor of law, Catherine Barnard says the UK could trigger A16 and that in itself is not unlawful. It only becomes so if Johnson tried to use it as a cover for suspending or removing Articles 5-7 or 10 and 12 of the protocol. This is what the problem is.
The legal route only allows very limited and specific actions and it will take months (she says nine to twelve months) anyway. This is not Johnson's style and why everyone expects the protocol to be trashed in a big way.
— Catherine Barnard (@CSBarnard24) November 7, 2021
David Henig thinks the sheer fury in Ireland and the EU at the government's action is underestimated in Downing Street:
The level of sheer fury in Ireland and across the EU at a UK government they believe is threatening peace in Northern Ireland out of ideology and ignorance, and is adopting a bad faith negotiating approach of emotional blackmail. https://t.co/ZlCW0Ck7Go
— David Henig (@DavidHenigUK) November 7, 2021
EU sources suggest that Brussels won't even trouble with using the tools available in the TCA and will move straight towards termination. I don't know if this is just a threat but I wouldn't bank on it.
I read recently somewhere, although I can’t now remember where, that the EU would convey the termination message using EU member states that would be most affected. This makes sense to me. So, the comments by Irish foreign minister Simon Coventry to RTE yesterday should not be a surprise. Ireland is the nation with most to lose. His comments looked planned and choreographed. Expect Germany next.
From RTE:
"Mr Coveney said that Ireland will act together in solidarity with the EU but that if the UK refuses to implement the protocol and looks to set it aside 'the EU will respond in a very serious way to that'.
"He said this will not mean the return of a hard border but could put in doubt the trade and cooperation agreement between the UK and the EU."
Termination of the TCA is actually the easiest route. It simply involves notifying the UK that they intend to quit the deal in 12 months.
It’s interesting to speculate what might happen if it was terminated.
We would be back into no deal territory with another loudly ticking clock but one thing would be crucially different to 2019 and 2020. Then, Johnson controlled the clock. He could stop it at anytime knowing the EU would throw him a lifeline and give him a deal, even if it wasn’t the one he wanted. If Brussels sets the deadline, they control things knowing they would suffer far less than the UK in the event that termination went through.
I think the pound would sink on news of the announcement. This would add to inflationary pressures since we import a hell of a lot of stuff. Since inflation is already rising I can’t imagine Sunak being pleased about that.
What would motor manufacturers like Nissan do? They have always been clear that their business model would not survive tariffs which would start to apply 12 months after the notification. I think they would be outraged. A lot of businesses have struggled this year through a combination of covid and Brexit, and plunging them into another crisis would be the last straw for many.
The OBR say the deal Johnson negotiated will reduce GDP by 4 per cent in the long run, about twice the 'scarring' of covid which itself was severe. But a no deal would raise this even more. The Treasury forecasts before the referendum talked about 6 per cent GDP loss under a no deal outcome, which is tantamount trade wise to adding three more global pandemics.
I read the blog post of Gerhard Schnyder (he writes astutely on all these things) and on the NIP crisis he had this to say:
"According to several observers [triggering A16] involves time travel: The UK government seems to be under the impression that triggering article 16 will allow them to 're-wind the clock' and get the chance to negotiated [sic]another Brexit deal. More specifically, the government will let the discussions with the EU over the NIP go nowhere, decry the EU’s lack of flexibility – despite considerable new proposals –, trigger article 16 and hope that this will somehow allow the government to have another go at negotiating a new Brexit deal."
If this is anywhere near true, next year will be even worse than any of the last five.
This is one battle that Britain can only lose. This time the Americans will enter on the German side.
