The UK has hinted at concerns (or ‘hardened its rhetoric’ in the words of RTE’s Tony Connelly) that an invocation of Article 16 may be necessary to prevent significant trade disruption between Britain and Ulster, address concerns about local violence, and prevent the EU’s heavy-handed insistence on full customs checks. Needless to say, this has gone down poorly with Brussels, which has accused the UK of a ‘political’ response to a purely ‘legal’ problem.
The semantics here indulged in by the Commission and its apologists are laughable. The Protocol is a flexible document which can be interpreted in a number of ways, whose interpretation bears on fundamental elements of Northern Ireland’s political life. Insisting that all goods are ‘at risk’ of entering the EU and rejecting granting the UK an ‘equivalent’ status on food safety are political decisions and not legal necessities. These positions by taken the Commission, in defiance of common sense and political reality, represent the real ‘hardening of rhetoric.’
On this last point of food equivalence, it’s worth noting the perversity of the EU’s reasoning. The official line is that the EU’s internal market in food relies on a ‘precautionary principle’ with a ‘zero-risk’ approach. That means that the EU can (conveniently) rule out any arrangements short of full SPS alignment by the UK, though there’s no evidence that British products enter the EU via NI or even that those products are noticeably inferior. In view of the potential trade deal between the UK and Australia, however, their goal of SPS alignment may be a forlorn one.
The EU itself applies the precautionary principle unevenly: most notably, in the temporary exemption that allows for UK entities to act as the ‘authorised holder’ for the purposes of medicines sourced on the British mainland and moved to NI. If the precautionary principle truly could not be overridden, this expedient would be impossible. Insisting on it is a negotiating tactic and not an inherently law-led stance.
Though European leaders like to hide behind legalistic rhetoric, the reality is that neither they nor even the European Court of Justice have compunctions about overriding treaty law when it suits them. As Perry Anderson put it in the London Review of Books, ‘just as it had no compunction in interpreting the Treaty of Rome to arrogate powers to itself of which no trace can be found in the document signed by the Six, so the ECJ had none in deciding that Lisbon meant the opposite of what it said.’ Brexit supporters should treat the EU’s legalistic platitudes with the contempt they deserve.