Sat. Nov 27th, 2021

What is Article 16 and how is it related to the Northern Ireland Protocol?

Article 16 is a safeguarding mechanism within the Ireland/Northern Ireland protocol, the arrangements agreed as part of the UK–EU Withdrawal Agreement to avoid a hard border on the island of Ireland. Article 16 allows either party to undertake unilateral safeguarding measures if the protocol leads to “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”.

Any actions taken must be “restricted with regard to their scope and duration” and must only address the issues explicitly identified. Article 16 is not intended to allow either party to suspend provisions of the protocol permanently or in their entirety.

The protocol does not define what constitutes either “serious economic, societal or environmental difficulties”, or a “diversion of trade”, so there remains ambiguity around threshold for taking unilateral measures.

When can Article 16 be invoked?

Before undertaking such measures, however, the parties should follow the process set out in Annex 7 of the protocol. First, if either party is “considering” unilateral action, it must notify the other party as soon as possible through the UK–EU Joint Committee, the body established by the Withdrawal Agreement to oversee its implementation. At this point, both parties should enter negotiations to find a solution ­– though no measures can be implemented during the initial one-month negotiating period. If negotiations fail and either party adopts unilateral measures, the other may take “proportionate rebalancing measures”. All measures are subject to review every three months, although each party can also request a review at any point.

Has Article 16 been used yet?

No, neither party has formally triggered Article 16. It has, however, been referred to by both the EU and UK. In January 2021, the EU proposed invoking Article 16 to allow export controls, designed to prevent Covid-19 vaccines produced in the EU from being exported without authorisation, to apply to vaccines being sent to Northern Ireland which could subsequently enter Great Britain. The EU justified this initial decision as necessary “to avert serious societal difficulties” it argued would arise if the vaccine supply to member states was disrupted.

In this circumstance, the EU did not follow the procedures for invoking Article 16, or notify the UK of the proposals through the Joint Committee. Following strong criticism from the UK and Irish governments, as well as political parties in Northern Ireland, the EU changed its mind and withdrew its statement (after about six hours) and amended the proposals before any unilateral measures were taken.

Will the UK government trigger Article 16?

The UK government has also suggested it would be willing to use Article 16, most notably in a ‘command paper’ published on 21 July 2021, Northern Ireland Protocol: The way forward. The paper argued that the protocol has created a significant diversion of trade between Northern Ireland and Great Britain which would justify invoking Article 16, although the government concluded “that for the time being it is not appropriate to exercise its rights under Article 16”

What is this “command paper”?

You can find it here, if you want to read it, but basically it is David Frost telling the EU what he wants and expecting him to give in. You can tell this because he calls it a “command” paper, as if arrogating to himself the position of being in command will prove that he is. (He isn’t.)

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1004581/CCS207_CCS0721914902-001_Northern_Ireland_Protocol_PRINT__1___2_.pdf

Why is the government thinking about triggering Article 16 now?

Because it needs to distract people from the state of play over Covid. When management of Covid is going badly, the government kicks off a fuss about Brexit. When Brexit is going badly, the government kicks off a fuss over Covid.

Do people in Northern Ireland want the Northern Irish Protocol to be suspended?

Apart from a very few strong Unionists, most people in NI now express themselves as happy with the Protocol. Now that supply chains have ironed out the blips over there, and NI is being supplied more from Eire than from the UK, they can see the advantages to, effectively, being in the Single Market and Customs union, unlike the rest of us poor wretches who are deprived of both. So opposition to the NIP has almost vanished. This is another reason the government would like to get rid of the NIP – they don’t want it to look to the rest of us as if we would be better off being in the Single Market and the Customs Union. (Which we would be.)

What’s the take on this from Eire? We can’t get any sense out of our media.

Simon Coveney, the Irish Foreign Minister had this to say on Friday (Irish Times):

“Simon Coveney was asked about a Sky News report that the British ministers are holding discussions about the repercussions of triggering Article 16, which would suspend full co-operation with the Northern Ireland protocol. Mr Coveney said it’s certainly a possibility that the British government will do this, pointing to the stance taken by UK prime minister Boris Johnson and chief negotiator David Frost.

“It would be a big political mistake. . . because I think the EU will respond very robustly.”

Mr Coveney said the EU has shown flexibility on the protocol and if the UK government acted unilaterally on that, the EU view would be they are “not an honest partner in trying to find common ground”. He said he doesn’t think the triggering of Article 16 would result in a hard border being imposed to protect the EU single market, pointing to the “incredibly strong” solidarity with Ireland in the EU.

“I don’t believe the EU. . . will allow a British government to act unilaterally to break international law and to make Ireland the victim of all of that by calling into question our place in the EU and its single market.” He said there would be “consequences” for the UK if Article 16 is triggered but declined to outline what they would be “because someone will accuse me of raising threats”.

Mr Coveney said there is “active and robust discussion” taking place between the EU and the UK and said he thinks “ we need to give the time and space to the negotiating teams”.”

How do we know that triggering Article 16 may be imminent?

Firstly, a committee has been set up to look at the consequences of triggering Article 16. There have been rumblings about triggering it for some time, but this is new. Sky reports that ministers are holding discussions inside the key cabinet committee, which oversaw Brexit fallout preparations, about the repercussions of triggering Article 16, which allows the UK to stop following some parts of the Northern Ireland Protocol.

The discussions on the practical implications of triggering the emergency mechanism in the Northern Ireland Protocol are being held in the “XO” cabinet committee, a pivotal institution inside government last year during Brexit talks when facing the threat of “no deal”.

This committee has now been named as GB(O) committee or Global Britain (O) inside Whitehall. Sky News understands that amid deteriorating relations with France and other EU capitals, the issue of “Article 16 readiness” is back on the agenda for a meeting shortly.

Government sources stress that the GB(O) Committee has already discussed the issue, and that the fact the issue is again on the agenda cannot be taken as a sign that Britain intends to trigger Article 16.

Secondly, the FT reported yesterday that the government

“is seeking to appoint new external legal advisers in preparation for a possible overhaul of Northern Ireland’s controversial post-Brexit trading arrangements,” adding that “the move to find fresh legal advice will fuel expectations that ministers are preparing to use the Article 16 safeguard mechanism to try to fundamentally rewrite the deal, which has soured EU-UK relations since it came into force last January.”

The FT reported that two people with knowledge of internal Whitehall discussions said the government was seeking the new legal advisers to enable Suella Braverman, the UK attorney-general, to provide legal opinions supporting the government’s plans. They said the move had been instigated because of fears that existing external advisers would not be prepared to back the government’s plans to use Article 16 as a backdoor to rewriting the deal. “They want to leave Braverman free to opine without there being any conflicting advice out there,” one added.

Downing Street, meanwhile said it was “untrue” to suggest Lord David Frost, the UK’s Brexit minister, was standing down existing legal advisers. “It is normal practice to commission legal advice from a wide range of sources on matters of this significance.”

The insiders said the move to find fresh legal advice appeared to point to a UK plan to use the measure to secure a broad suspension of the protocol, including key sections of the deal that leave the region subject to EU jurisdiction on goods trade.

While James Webber, a partner at law firm Shearman & Sterling, who has advised Brexiters on legal issues surrounding the protocol, said it was reasonable for the government to diversify its legal pool, other legal experts said that if Article 16 was used as a means to fundamentally reset the protocol, rather than address limited and identifiable defects, the government could struggle to make its case. (As a committed Brexiter, Webber would naturally say this.)

On the other hand, George Peretz QC, a public and trade law barrister at Monckton Chambers (and an opponent of Brexit)  said the government’s argument would be weakened by it having knowingly signed up to a deal that in effect put Northern Ireland in the EU’s customs territory and regulatory zone for goods: “It would make no sense for parties to agree to a provision that allowed either of them to escape key obligations in certain circumstances if [they] included things that were very likely or certain to happen,” he said.

Meanwhile, Sir Jonathan Jones, the former head of the UK government’s legal department who quit last year after the government admitted it planned to breach international law over the protocol, said the search for new advisers would not necessarily lead to better advice.

“It’s a very bad sign if any client has to start shopping around for advice because they don’t like the advice they’re already consistently being given. It’s not the best way to produce authoritative, accurate legal advice,” he said.

(In other words, triggering Article 16 is a bad idea, especially if it’s used as a way to get out of the whole Withdrawal Agreement and the TCA, which may be the government’s intention.)

What would be the consequences of triggering Article 16?

Article 16 has been described as an “emergency brake” which allows either side to take unilateral action if the protocol is causing “serious economic, societal or environmental difficulties that are liable to persist”, or diversion of trade.

It does not, however, automatically withdraw or cancel the protocol, contrary to what many believe. What triggering Article 16 does is begin a very lengthy process with the EU launching a series of “consultations… with a view to finding a commonly acceptable solution”.

These talks happen through the joint committee, the political oversight group led by Lord Frost and his EU counterpart, the European Commission vice-president, Maroš Šefčovič. It does appear, however, that Frost believes triggering Article 16 is a step in a complete withdrawal or renegotiation process. He’s going to be disappointed: Šefčovič and the EU will always stick strictly to the letter of what was decided – and they decided that there would be NO renegotiation of, effectively, the terms of the Withdrawal Agreement, which is what Frost is angling for.

Meanwhile, the Government would have to give one month’s notice of any unilateral action, such as suspending customs checks between Northern Ireland and Great Britain, during this time. It would also be expected to take part in regular consultations with the EU every three months.

In its simplest form, Article 16 is just a temporary fix and does not resolve the long-term issues which the protocol has raised. If it were to be used, however, and both sides continue to disagree, the EU could retaliate with “proportionate rebalancing measures”. Northern Ireland Secretary Brandon Lewis said the Government believed “the conditions have been met” to trigger Article 16. But despite the Government said it is willing to trigger it, they prefer the option of negotiating a “sustainable” agreement with the EU. Mr Lewis also said there will always be the need for some kind of regulatory checks between Northern Ireland and Great Britain, such as phytosanitary checks.

But we understood that talks about sorting out the situation in Northern Ireland were ongoing anyway. So why suddenly bring this into play now? Especially if the government does prefer a “negotiated settlement”?

  • Power play on the part of the government: this is the “tough approach” (AKA needlessly confrontational and aggressive) that Frost favours.
  • The ERG is getting restless about the NIP meaning that parts of the Union are still subject to the European Court of Justice: they want out from any oversight whatsoever.
  • The government is also playing up to its Brexiter supporters’ artificially whipped up hatred of the EU. It needs to continue to demonise the bloc, in case the government’s supporters suddenly wake up and turn on the government itself. For evidence for this look at the Daily Express: the paper still maintains a sort of “EU watch” which regularly briefs against the EU (all facts distorted or inaccurate, of course) to keep up an ongoing rumble of dissatisfaction that the government can use for its “The EU is responsible for everything you don’t like about your life including the people you’ve lost to Covid, your dissatisfaction with work, the problems with the NHS, immigrants still being visible on your streets, the issues with the supply chain, the sewage in the water, the increase in your NIC, and the increased costs of food, fuel and energy.” “Us?” says the government. “Don’t look at us: we are not the authors of your misfortune: it’s all about the evil EU.”

So where does this leave us?

Well, all the things that are problematic for the UK will remain problematic, whether Article 16 is triggered or not. But if it is triggered, and the EU does decide on those ““proportionate rebalancing measures” then we can expect them to be even more problematic. The EU will do whatever it takes to safeguard the Good Friday Agreement and support its ally and member, Ireland.

Notice also in this context, that the US, with an Irish-American President, has stood firmly on the side of Ireland and the EU during the recent COP26 talks. (What a mess they have been by the way: more on that later!) The US has expressed support for the EU, taken pains to smooth over the submarine blip with France and mentioned its close ties to Ireland, There is, however, no mention of the UK in its press releases at all, and there are no photos of Biden with Johnson, whereas photos of Biden with Macron, and other EU leaders abound.

We are no-one’s friend at the moment: Billy No-mates. Unfortunately, the way Frost is acting will only entrench on the minds of leaders of others countries that we are a dishonoured and dishonourable country.

Will the government trigger Article 16?

Probably. While it seems hard to believe that we have any feet left to shoot ourselves in, one thing you can guarantee of this government is that it has an unerring instinct for self-sabotage.

“Port of Larne” by AndrewH.uk is licensed under CC BY-ND 2.0

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