Article 16 of the Ireland/Northern Ireland Protocol provides a mechanism for the UK or the EU to take “safeguard measures” to reduce any serious problems stemming from the operation of the Protocol. This special deal was agreed as part of the UK-EU Withdrawal Agreement and seeks to prevent the introduction of a hard border between Northern Ireland and Ireland. The Protocol de facto places Northern Ireland in the EU Single Market for goods, which allows for a ‘soft’ border between Northern Ireland and Ireland but leads to checks on the trade of goods between Great Britain and Northern Ireland as a result, what has been described as a “border in the Irish Sea”.
Why is Article 16 being mentioned now?
Since the Protocol came into force at the start of the year, there has been a lot of back-and-forth between London and Brussels over its operation, with the UK stating that it has unduly hindered trade between Great Britain and Northern Ireland.
Over the past few months, speculation has been growing that the UK Government will seek to invoke the provision, in the face of increasing trade flows between Northern Ireland and Ireland (at the expense of trade between Northern Ireland and Great Britain). On 21 July 2021 the UK Government published the ‘Northern Ireland Protocol: The way Forward’ Command Paper which elucidated its thinking on the Protocol, reflecting on data collated from the first months of the Protocol’s operation, and provided an indication on its preferred solution to the issue. Following this, the EU prepared a set of fresh proposals to address the findings of the Paper, which were published in October. Although the UK Government has welcomed the new proposals and has entered into a fresh set of negotiations regarding these, it has stated that more needs to be done.
This is not the first time Article 16 has attracted the attention of the media. In January 2021, the EU temporarily proposed invoking Article 16 to allow export controls prevent COVID-19 vaccines produced in the EU from being exported without authorisation. This move somewhat sullied relations between London and Brussels and its impact has been felt ever since.
What are the timeframes associated with Article 16?
Article 16 isn’t a provision that can have an instant impact on the workings of the Protocol. The reality is that Article 16 is a device which opens a round of consultations between the UK and EU which could take a large amount of time to conclude.
Only in “exceptional circumstances” (which have not actually yet been defined), can the UK or the EU take any actions within one month after resorting to Article 16 and it is arguable that such circumstances are those which fall outside the Protocol’s consideration. As a result, “diversion of trade” (which is mentioned in the text as a reason for the use of Article 16) may not be a sufficiently “exceptional” reason for the one-month barrier to be circumvented.
In regular circumstances, therefore, Article 16 states that the UK and the EU should “immediately” enter into consultations through the UK-EU Joint Committee (which has been set up through the Withdrawal Agreement) in order to arrive at a solution to the issues at hand.
The UK and the EU could swiftly agree a solution, of course, but if this was not to happen, either would introduce measures that it feels would rectify the workings of the Protocol (provided, of course, that at least one month has passed after the Article 16 process has commenced).
The UK-EU Joint Committee would then review these measures every three months, with a view to phasing them out or reducing their impact on the agreement. The Committee could also review these measures at any time upon the request of either party.
The timeframes of Article 16 have been introduced to ensure that although the UK or the EU can consult on issues affecting the Protocol, the default is in favour of its continuation.
Will the UK Government trigger Article 16?
The July 2021 Command Paper stated that the Protocol had created such a diversion of trade between Northern Ireland and Great Britain that it would be justified in invoking Article 16. It concluded, however, that the Government wouldn’t trigger the provision just yet.
Over the past weeks the UK and the EU have been engaged in negotiations set up after the EU published its proposals to smooth the operation of the Protocol. Media accounts have suggested that negotiations have been proceeding relatively well (compared to some previous tempestuous negotiation rounds) but this week it was reported that the UK Prime Minister said that it would be “perfectly legitimate” for the UK to trigger Article 16.
This, of course, indicates that the UK is prepared to go down this path. In response to the Prime Minister’s comments, the EU’s Maroš Šefčovič said that that if the UK was to do so, then the EU would have to consider “all tools at our disposal”.
However, with politics, there is always the chance that strong rhetoric such as that used by the Prime Minister is actually not a reflection of what the Government intends to do, but more a negotiation tactic.
Furthermore, as noted above, it’s not the silver bullet that some may wish it to be and if it is triggered, it will be the same people negotiating Protocol issues who are currently doing so.
It is therefore too early (and arguably too complex) to say whether the UK Government will indeed invoke Article 16.
What would the impact of triggering Article 16 be on UK-EU relations?
Many EU officials are increasingly of the view that the UK is heading down the Article 16 path. As such, it may not have a substantial impact on relations between Brussels and London in the short-term.
However, if the UK was to take unilateral measures to rectify what it sees as flaws stemming from the application of the Protocol, the EU, under the terms of Article 16, would have the ability to take counter-measures in response. These measures could include raising tariffs on certain UK goods and insisting on 100% physical checks on UK goods at EU border posts, both of which would have a substantially negative impact on UK-EU trade and therefore the relationship itself; trade wars are never commensurate with good international relations. In the most extreme situation, the EU could choose to withdraw from the UK-EU Trade and Cooperation Agreement, making a ‘No Deal’ Brexit a reality after a 12-month notice period has been served.
Moreover, relationships are built on trust and if one party doesn’t think the other is acting in good faith, there is a strong likelihood that this will affect interactions, which has certainly been what’s been briefed to the press from both sides. It is not wholly surprising then that the spectre of Article 16 is impacting relations at present, and should it be triggered, could damage relations further.