ARTICLE 16 HAS screamed back into the headlines this week as the UK threatens to trigger the clause of the Northern Ireland Protocol because it is not happy with how it is being implemented.
The UK’s Brexit Minister David Frost warned today that time is “running out” on talks to restructure the arrangement.
“We’re not going to trigger Article 16 today, but Article 16 is very much on the table,” Frost said.
The move could undermine the withdrawal agreement and potentially pave the way for a trade war.
The Taoiseach used strong language in cautioning against triggering the clause, saying it would have “far reaching implications” for the UK government’s relationships with Ireland and the EU.
Micheál Martin said it would be “irresponsible, unwise and reckless” and would shake the foundations of the Good Friday Agreement.
The article is a clause in the Northern Ireland Protocol, which is one of the key elements in the Brexit Withdrawal Agreement that legally enabled the UK to exit the European Union.
The protocol means Northern Ireland is effectively remains part of the EU’s single market for goods. It allows goods to flow freely between Ireland and Northern Ireland and removes the threat of a hard border.
Article 16 allows either side to take “safeguard” measures if it concludes that the protocol is causing “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”.
Article 16 itself runs to less than 200 words in length, which is impressively concise considering the terabytes of news articles its existence has generated.
The UK has threatened to trigger the clause several times since it signed the withdrawal agreement. However, the European Commission went further and signalled its intention to trigger the article when it was embroiled in a row with AstraZeneca over vaccines.
That proved to be a pretty spectacular misstep and the Commission quickly performed an embarrassing climbdown.
In order to trigger the clause the UK is obliged to prove that the protocol has given rise to “serious economic, societal or environmental” difficulties.
Frost has repeatedly claimed that the conditions to trigger it are met because of the obstruction to trade flow between Britain and Northern Ireland.
Triggering the article kickstarts a formal process that requires both sides to engage in talks to resolve the dispute.
Professor Federico Fabbrini, director of DCU’s Brexit Institute, says using the provision is not the silver bullet many in UK politics seem to believe it is.
Rather, if the UK did pull the cord on the provision it set off would off a lengthy process –detailed in annexe 7 of the protocol – where the two sides carry out consultations with a view to finding a commonly acceptable solution.
The article also states that any measures taken under the provision must be strictly necessary and proportionate and should achieve their objectives with the least possible damage to the protocol.
“Article 16 in itself doesn’t solve anything,” Professor Fabbrini explained.
A party can invoke it, but the effect will simply be that the other party will then be enabled by the provision of the protocol to replicate and to adopt countermeasures.
“We don’t know exactly what the EU would do if Britain were to trigger Article 16 because it has never been explicit about this.
“I’m totally mindful that politics will trump the law on this matter, but legally speaking, this is not a silver bullet provision. This is not something that allows the UK to achieve much by itself.”
Professor Fabbrini said the UK’s continuing targeting of the Northern Ireland protocol is part of a strategy to attempt to dismantle anything it negotiated in the withdrawal agreement that binds the UK to the EU.
“The protocol is the most obvious and the strongest way in which the European Union continues to influence the United Kingdom after Brexit. So, the strategy here, I think it’s quite explicit,” Fabbrini said.
The European law expert said the UK triggering the provision now would “mostly be a political declaration” that could backfire very quickly.
He said the fact that it is keeping its powder dry while the COP26 climate summit is taking place in Glasgow shows that it is aware of the likely political ramifications of the move.
“The UK is probably aware that there would be outrage across the world and particularly in Washington, DC, if this happened. They don’t want to do this during an international conference they are hosting,” he said.
“The UK doesn’t have a magic wand, whereby it can get rid of the protocol and solve all the problems.
The problems are created by Brexit and the protocol was the way to solve them.
“If the protocol isn’t the way to solve them there has to be another way. And nobody knows what this other way is.”
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