Article 16 must be invoked to protect the Union

Jon Stanley

November 9, 2021

The Bow Group immediately rejected the Northern Ireland Protocol when the government’s Brexit Bill was laid before the House. The Northern Ireland Protocol violates the principles of cross community consent within Northern Ireland which is the basis for devolved government.

Of course, it is not laid out as such in the Good Friday Agreement. The people of the United Kingdom were denied a referendum on the Good Friday Agreement despite that luxury being afforded to the Republic of Ireland.

The NIP is not separate to the Brexit Agreement and so cannot be unilaterally cancelled. It may in part be suspended if it destabilises Northern Ireland. It is important that it be considered in terms of how the NIP, and not political actions within NI, destabilise Northern Ireland. Decisions must be made without causal link to political disturbance in Northern Ireland. Such a link would arguably encourage behaviour which the Belfast Agreement moves us away from. If not, it is arguable the Belfast Agreement has also failed. One section of Northern Irish politics has suggested this is the case this week with a statement by the Progressive Unionist Party.

Article 16 allows for the NIP to be partially suspended to create a space for further negotiation. This formally means a renegotiation of the Brexit agreement. The NIP has disrupted the flow of medicines within the UK, jeopardising the public health in all of the UK, not only NI.

This is the basis for Article 16 to be invoked: to oblige the EU and UK to negotiate while the Brexit Agreement is in place. Suspending the Brexit Agreement there would violate the Agreement and arguably voids it.

The United Kingdom is a unitary state with devolution. It is not a union of states: the Union is simply the extension of rights and privileges granted within the Kingdom of Great Britain to Northern Ireland. The Union is therefore a statement of equality, and the United Kingdom cannot exist without this equality. Particularly with regards to the flow of goods within the UK, under Article 6 of the Act of Union, the UK fails its people as a whole if it fails the people of Northern Ireland. This is a simple matter of equality under the law for all British citizens.

In my view, the Leader of the House, Jacob Rees-Mogg should have called the NIP crooked by his standard.

Back in November 2014 the then backbench MP called the government to account over the European Arrest Warrant. His view was that a government could not hold an indicative vote on an issue if that vote were to imply the will of the house for another view. He went as far as to raise this with the then Home Secretary Theresa May, when he said: “The government cannot conceivably decide that one vote is indicative of another”.

He went on to say that “It is the way of tyranny because it takes away the right of the legislature to hold the executive to account”, concluding that “This must be debated because I believe this is not accidental.”

Yet this is what Rees-Mogg did when he introduced the Brexit Bill because he would have known the Act was repealed by implication. He would have known because the government went on to state in court that a vote for the Northern Irish Protocol, indeed the whole Brexit Bill, implied repeal of Article 6 of the Act of Union 1800. For this position to be legal it had to have been the government position when the Brexit Bill was introduced.

When Rees-Mogg was challenged in the House on the Bill set to pass in only one day’s sitting, he replied that the five hours available to debate the bill in the Commons were appropriate given “that we have now been discussing this subject for four, five, six or perhaps nearly 50 years.”  

This contrasts sharply with his previous dismay over the speed of the Benn-Burt Act noting for posterity that MPs, “…should be very careful about emergency legislation, for they may find they are at the wrong end of it in the future.”

In the run up the passage of the Bill, the government repeatedly said in the House there would be no border in the Irish Sea, fully aware that the Act of Union was amended by the Brexit Bill. This must have misled the House because if the expert evidence was submitted to the court in Belfast in a case brought by Jim Allister, Kate Hoey and Ben Habib, it was then withheld from the House and even a basic understanding of civil law post Wolfe, meaning expert evidence must be heard by all sides in time to analyse, weigh and respond to.

The Brexit Agreement was of course passed with one day of debate and was passed under duress. The move by Parliament to suspend Standing Order 14 effected a coup by removing the right of the British government, as our sole legal treaty party to the agreement, to treat freely by banning it from rejecting a EU deal. This is what the Benn Act did. Parliament cannot bind a successor and so the Benn Act no longer applies as it has been revoked. On this basis the British Government is restored as a sole treating party with the EU, so treat as the Brexit Agreement envisaged, to develop the relationship with the EU, including Ireland as a member state.

The EU referendum led to the Brexit Agreement between the EU and UK which supercedes both the Lisbon Treaty and the Belfast Agreement. This creates an interesting dilemma. The Belfast Agreement is between the UK and the Republic of Ireland within the EU. It mentions the EU specifically in how relations will be maintained and developed. Therefore, either the EU is the sole treaty partner with the UK, or references to it must be removed from the Belfast Agreement. We need to formally know who we are dealing with – it cannot be with both the EU and Ireland as that is not credible.

The Amsterdam Treaty applies as part of the Lisbon Treaty to the Republic of Ireland as a member state and makes clear border arrangements regarding the movement of people are reserved to the UK and Ireland. This is compatible with the Brexit Agreement; the NIP however violates the Belfast Agreement. This must be clarified.

An extension of Amsterdam provisions to issues within the NIP could allow for mutual enforcement of the NIP. The EU does not wish for this to happen however. The Bow Group has proposed the use of a new mechanism based on the model of Article 349 of the Lisbon Treaty that would allow the EU and Ireland to work out how a hard border with the UK could be avoided. This would be in-keeping with EU law, would not necessarily require constitutional change and so could happen following a EU summit without a vote within Ireland, though the Dail Eireann would be expected to approve it.

Such a model would be diplomatically difficult to achieve, and would require the UK exerting considerable pressure on both the EU and Ireland. This may be possible if we radically change our approach to European diplomacy, and underline the reality that the status quo cannot hold. Every solution proposed, including the status quo, has been called unworkable. The solution that emerges will inevitably be one that appears unachievable. What is absolutely essential is that the ECJ ceases to be the arbiter, as it is clearly a biased court.

I believe Article 16 now needs to be triggered to move things forward and reset the terms of negotiation. The issues with the Brexit deal, as we also raised that the time, are not limited to the NIP. So triggering Article 16 is not a means to solely abbrogate the NIP and proceed with the rest of the Brexit Agreement unchanged.

The bottom line is that if we are to make a success of Brexit, the Brexit deal needs to be changed. We take the view however that this government is not capable of making a success of Brexit, and as such there are indeed hazards in rocking the boat with such weak hands on the tiller.

Author

Written by Jon Stanley

Dr Jon Stanley is the Senior Research Fellow for the Bow Group. Follow him on Twitter @jonmarcstanley

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