FOR the past year we have heard a lot of talk being thrown about, particularly from the British Government, about triggering Article 16 of the Northern Ireland Protocol.
At the Conservative Conference, we have this threat repeated by the Secretary of State for Northern Ireland, Brandon Lewis, and the UK’s chief Brexit negotiator, Lord Frost.
Indeed, Lord Frost has continuously talked down the post-Brexit protocol and demanded the EU cede to his demands. This despite Lord Frost having negotiated this very Brexit deal, a deal the British Prime Minister backed, rushed through Parliament, and won a General Election on the back of.
But what would happen should Article 16 be triggered?
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Article 16 is a clause in the Northern Ireland Protocol, which prevented a hard border on the island of Ireland by allowing Northern Ireland to remain in the EU Single Market for goods, as well as the British internal market. As per the Protocol, Article 16 can be triggered in the case of “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”.
There is no definition of these difficulties, which allows for interpretation from both sides.
The UK Government believes the Protocol to be flawed and wants a complete renegotiation, including the removal of all customs checks on goods moving from Britain to Northern Ireland and an end to the role of the European Court of Justice and wider EU institutions in the policing of the Protocol. This is even though it is the Protocol which is protecting Northern Ireland from the worst effects of Brexit, food shortages, HGV driver shortages and fuel shortages.
Prime Minister Johnson (above) himself admitted this weekend that “the Protocol could in principle work,” however, instead of choosing to implement the Protocol fully and maximising its benefits, the UK Government are choosing to ramp up their rhetoric and toss around the threat of triggering Article 16 to supposedly solve their problems.
Subject to what some might think, triggering Article 16 does not remove the Protocol, nor does it allow for one side of the agreement to take whatever action they desire but instead it launches more talks and negotiations.
If triggered, both the UK and EU would be faced with a month of joint consultations to work towards an agreeable solution to the problem at hand, in discussions led by UK negotiator David Frost and Commission vice-president Maroš Šefčovič (below). Returning to the rules of the protocol will be the goal of any of these talks - so it begs the question: why would it be triggered in the first instance?
If the UK Government did choose to trigger Article 16, the EU is entitled to respond with “rebalancing measures,” and vice versa. This likely would include legal action from the EU but could also lead to a rise in tariffs on UK goods in the EU, causing further disruption for both parties.
These threats from the British Government are wholly unnecessary given that the EU are ready and willing to engage with the UK on dealing with issues with the Protocol, indeed Maroš Šefčovič recently announced that the Commission will draw up proposals to deal with issues surrounding the moving of medicine from Northern Ireland to Great Britain.
New proposals from the EU are also expected on customs and agri-food checks, a role for Stormont as well as further technical talks. What the EU will not accept, however, is a complete renegotiation of the Protocol. Any engagements must take place within the framework of the Protocol, bearing in mind that the UK Government negotiated every line, endorsed the deal and voted it through Parliament.
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Instead of engaging in pointless threats of triggering Article 16, which will do little to nothing to achieve the changes to the Protocol that the UK Government wants to see, the time has come to knuckle down and engage with the EU in good faith. There is room for manoeuvring within the Protocol, but these alterations cannot be achieved without engagement.
Political posturing is fruitless at this point and will achieve little. At some stage, it would be nice if the British Government took responsibility for their own treaty rather than trying to play political games.
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