What is Article 16?

Fears of a UK-EU trade war are growing after Britain again threatened to trigger an emergency clause in the Northern Ireland Protocol known as Article 16.

The European Commission’s Vice-President Maros Sefcovic said yesterday that the two sides would “intensify” efforts to break the impasse over post-Brexit trade arrangements for Northern Ireland. But triggering Article 16 would have “very serious consequences”, he warned.

Adopting what The Irish Times described as a “more positive stance on some aspects” of latest talks with Brexit Minister David Frost, Sefcovic told an Irish parliamentary committee that he welcomed a recent “change in tone” from London. However, he added that “I worry about the rhetoric and action of the UK as regards the implementation of the agreement and in particular the protocol”.

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Article 16 explained

Article 16 is a “safeguarding mechanism” for the Northern Ireland Protocol, a deal agreed as a part of the UK-EU Withdrawal Agreement “to avoid a hard border on the island of Ireland”, the Institute for Government explained.

The clause states that both the UK and the EU may take unilateral safeguarding measures if the protocol leads to “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”.

The UK is arguing that this threshold “has already been reached as a result of the trade frictions” caused by the deal, said the Financial Times (FT). Although Boris Johnson agreed the protocol back in 2019, Downing Street now says it has caused far greater disruption than was anticipated and should be rewritten.

The government has also claimed that Ireland’s “unionist community” has “lost confidence” in the protocol and that its continued use could “destabilise the already fragile politics of the region”, the paper added.

Trigger points

The safeguarding mechanism is intended to be used only in the event of “serious difficulties” or “diversion of trade”, as opposed to “temporary or minor problems”, said the BBC. But there is no “specific guidance” on what qualifies as a “serious” issue or diversion.

In July, Johnson’s government published a paper, titled “Northern Ireland Protocol: the way forward”, that said the protocol had created a "significant diversion" of trade between Northern Ireland and the rest of the UK that justified invoking Article 16.

The paper set out proposals to replace the Northern Ireland Protocol, but added that “for the time being, it is not appropriate to exercise” the UK’s rights under the safeguarding clause.

In October, the EU laid out the bloc’s proposals for reforming the protocol, in a bid to end the stand-off. Frost said they did not go far enough, however.

As the negotiations drag on, the UK government has “not clarified what unilateral measures under Article 16 it might seek to introduce”, said the Institute for Government.

But in an escalation of tensions last night, Johnson said that triggering Article 16 would be “perfectly legitimate”.

“Let me say – given all the speculation – that we would rather find a negotiated solution to the problems created by the Northern Ireland protocol, and that still seems possible,” the prime minister told an audience of business leaders and diplomats at the Lord Mayor’s Banquet in London.

“But if we do invoke Article 16 – which by the way is a perfectly legitimate part of that protocol – we will do so reasonably and appropriately, because we believe it is the only way left to protect the territorial integrity of our country, and meet our obligations to the people of Northern Ireland under the Belfast Agreement.”

Pulling the trigger

To invoke Article 16, the UK or EU would notify the European Commission of its intention to trigger the mechanism and lay out the measures intended to be taken. The two sides would then enter into a consultation process.

Under Article 16, permitted action is limited to what is “strictly necessary in order to remedy the situation”, and can only come into force after a month, unless it can be argued that action is required immediately.

The EU’s response to the clause being triggered would depend largely on “how expansively the UK used Article 16”, according to the FT. If London identified “specific problems”, Brussels would be likely to take “limited steps to address the fallout in those areas”.

But if the UK sought to “suspend key parts of the protocol – for example Articles 5 and 7, which form the basis for leaving Northern Ireland in the EU single market for goods – then Brussels has suggested it could take far more draconian action”, the paper said.

Such suspensions “would effectively end the Irish Sea border and from the EU's perspective create a backdoor into its single market”, the BBC added.

With neither side willing to give way, pundits are warning that talks on how to reform the protocol could end with another “no deal” cliff-edge.

And the result could be a “serious rupture of economic and political ties” that “could also extend to foreign affairs and cooperation on a range of fronts, from data flows to pan-EU scientific research projects”, warned the FT.