The NI protocol issue is looming once again

Johnson appears in front of the parliamentary liaison committee this afternoon, which should be interesting in the middle of the sleaze allegations crisis - although he's usually to be found in the middle of one self-made crisis or another, the next one is always just behind isn't it?  That is likely to be the NI protocol Article 16 saga. Tony Connelly at RTE reports that Irish foreign minister Simon Coveney, after meeting Maros Sefcovic, the EU vice president, claims we will know by this Friday if the UK and EU can reach an accommodation on implementing the protocol or not.

Nobody is very hopeful I must say.

So we may soon find out if Lord Frost's threat to trigger article 16 is just a bluff or not. If there is a deal no doubt he and Johnson will claim it was the threat that did it.

Unfortunately, Frost has raised a lot of expectations among Brexit hard liners and the DUP. They want the protocol scrapped entirely and I don't think that's ever going to happen anyway.  So, if A16 is not triggered Johnson will be in trouble with his own side and if it is, he will be in trouble with everyone else. 

It's very hard to discern any strategy here.

A few days ago, the government was said the be looking for external legal advice about the prospects of using A16 and Lord Frost more or less confirmed it in the Lord's last week. He said Attorney General Suella Braverman needed to have the best possible advice.

The head of the government legal department (GLD) Sir Jonathan Jones, who stood down last year when Brandon Lewis talked about breaking international law, says when governments don't like the advice they're getting from the GLD, it's not a good sign.

Personally, I can't see A16 being triggered. The legal side is fraught with problems as George Peretz QC sets out in a fascinating blog post:

He first explains that the Withdrawal Agreement is incorporated into domestic law by two Acts of Parliament:

"The starting point is that the WA, of which the Protocol forms an integral part (see Article 182 of the WA), is incorporated into domestic law.  That is achieved by section 7A(1)-(3) of the EU Withdrawal Act 2018 (the “2018 Act”), a section inserted by the EU Withdrawal Agreement Act 2020 (the “2020 Act”)."

That section (as I read it) sets out the obligations of the UK government to implement the measures contained in the NIP, 

"It follows that any UK measure (including retained EU law) is – as a matter of domestic law – subject to the provisions of the Protocol.  If any such measure is inconsistent with 'rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under' the Protocol, then as a matter of domestic law the domestic court must grant effective relief."

But Section 8C of the same 2018 Act confers what has been describes as an “extraordinarily broad” power on the UK government in relation to the Protocol, allowing a Minister of the Crown to "make such provision as the Minister considers appropriate" to implement or supplement the protocol "otherwise for the purposes of dealing with matters arising out of, or related to, the Protocol (including matters arising by virtue of section 7A and the Protocol)."

He discusses the interplay between these two sections 7a and 8c and whether a minister can simply pass secondary legislation (by decree almost) to override the protocol. He concludes that it cannot and it would therefore need a clear Act of parliament to do so, or as he says:

"In short, to put it somewhat colloquially, the intention of the legislation to apply notwithstanding section 7A would have to be made clear in words visible from outer space: and since giving effect to that intention would be a breach of Article 4 of the WA, it would have to be made clear that the intention was to authorise an infringement of the WA."

And as he goes on, given the problem they had last year in a previous attempt (Part 5 of the Internal Market Bill) to get such a measure through the House of Lords (which rejected it by overwhelming majorities), "one can see why, according to various newspaper stories, it wants to avoid that course."

Peretz says, “If it fails to get that cover [an Act of parliament]– and the political difficulties in getting it are obvious – then any such act, omission, or legislation would have to be declared unlawful, or quashed, by a domestic court.” 

Absent that cover, the government is very limited in what it can do under Article 16.

To illustrate this, he cites Robert L Howse, a recognised authority on international law at New York University Law School, who has produced a legal opinion about the matter, published by the Brexit Institute of Dublin City University. 

It will offer little comfort to Lord Frost.

If the government goes to court to try and adopt measures outside the protocol - to suspend it permanently for example - no court would "lightly dismiss as irrational a government’s view as to whether provisions of the Protocol were giving rise to economic or societal difficulties or diversion of trade.  But the basis of such a view would have to be set out and reach a standard of plausibility, if not a very high one."

In addition the government would have to advance a "plausible case that those difficulties were both unexpected (or at any rate not obvious) consequences" of the Protocol itself.  It is not entirely clear that the government is in a position to do that.

And this is the killer blow from Mr Howse, if the government ever got that far it would find it hard to explain why these extraordinary difficulties at the border cannot be resolved by harmonising or aligning regulations. It may say it doesn't want to do that but this is a political decision, not a legal one.

As Howse puts it:

"But that [a political choice] could not be a valid reason for rejecting an alternative measure less disruptive. Because a party could always say that it doesn’t want to choose the alternative for political reasons, which would render the legal discipline of strict necessity impossible to apply."

And this is even more true when (again relying on Howse) "on any rational theory of public interest, the losses to the UK from harmonization would be likely minimal. "   In fact there would be no losses only gains - 4 per cent of GDP (circa £100 bn) a year by 2030 according to the OBR.

In other words any Article 16 measure must be 'strictly necessary' (which would suggest, for example, that "where a problem such as disruptive checks on the Irish Sea border could be dealt with by alignment of standards in Great Britain with those of the EU, then alignment should be chosen rather than Article 16 measures)."

Peretz also notes that the government’s analysis of the case for invoking Article 16, set out in the July Command Paper, doesn't address any of the above issues and hence its assertion that it is “clear” that the circumstances exist for its invoking A16 is therefore highly questionable.

So, is the government going to use Article 16? I doubt it.