Article 16: Brexit Spectre
Throughout this year’s Conservative Party Conference, there have been numerous references made to ‘Article 16’ of the Northern Ireland Protocol, at fringe events, in media interviews or on the main stage. Most notably, Lord Frost, Minister of State in the Cabinet Office and the man most responsible for implementing the new UK-EU relationship, claimed that triggering Article 16 may be necessary to change the elements of the Brexit deal that affect Northern Ireland, and that the UK is not afraid to take such an action.
But what exactly is Article 16 and what does it mean?
What is Article 16?
‘Article 16’ can be found within the Northern Ireland Protocol, the part of the UK-EU Withdrawal Agreement that dictates trade between Great Britain, Northern Ireland and the Republic of Ireland. The ‘Protocol’ means that following Brexit, Northern Ireland remains within the European Single Market, but within the same customs territory as the rest of the United Kingdom. This was presented as a workaround in 2019, in order to prevent a hard border on the island of Ireland, between the North and the Republic.
Article 16 of the Protocol explains that if the significant changes to GB-NI-RoI trade presented by the Protocol were to result in “serious economic or environmental difficulties that are liable to persist, or to diversion of trade”, then either the UK or the EU are permitted to take unilateral measures to safeguard against this. This could be seen as some form of an insurance policy, to reassure both parties that the Northern Ireland Protocol won’t impact ‘that much’, and if it does then you can protect against it.
Tensions have already been rising, as the EU restricts the movement of chilled meats entering the Single Market from non-EU members . There was a grace period on EU Exit for GB-NI chilled meats, to allow adjustment, but this was to end on June 30th. The UK-EU agreed and extension to September 30th 2021, and have been in limbo since then…
Unfortunately, there are no concrete definitions for what classes as “serious economic or environmental difficulties”, or diversion of trade, leaving the issue ambiguous. The UK Government is increasingly of the opinion that the Protocol has led to a significant diversion of trade between Great Britain and Northern Ireland, while the EU does not believe that the threshold for safeguarding measures has currently been reached.
What happens if Article 16 is triggered?
If the UK does decide that the trade diversion has reached a critical point, and decides to trigger Article 16, then under the Protocol the UK Government will be required to notify the EU of its intentions to unilaterally implement safeguarding measures.
Both parties would then have to try and find an agreement to avoid these measures, but if no agreement can be found then the UK could unilaterally implement measures that make trade between Great Britain and Northern Ireland easier.
Government laid out its position on the future of the Protocol in a ‘Command Paper’ earlier this year, including the desire to reduce requirements for certain certificates for food products moving between Great Britain and Northern Ireland.
In response, the European Union could challenge the UK’s Article 16 actions and could then be permitted to respond with ‘rebalancing measures’. These could theoretically include withdrawing benefits of the EU-UK Trade and Cooperation Agreement (TCA) and result in new tariffs being applied to UK goods being imported to Europe.