As the UK and the European Union try to resolve their Brexit-related trade disputes over Northern Ireland, UK ministers have hinted that the country could invoke a measure of last resort.
That would mean acting under Article 16 of the Northern Ireland Protocol to unilaterally impose “safeguard” measures to solve a trade problem.
It comes as the UK government says the protocol has led to trade disruptions and shortages, leading to them propose a “new legal text” to replace the protocol, arguing that he had “lost consent” in Northern Ireland.
But the EU has indicated that it does not want to renegotiate a protocol agreed with London just two years ago.
As the two sides continue to debate the trade deal, here’s a look at the protocol and its safeguards clause.
What is the Northern Ireland Protocol?
The Northern Ireland Protocol was part of the Brexit agreement of the European Union and the United Kingdom.
Designed to avoid a border on the island of Ireland, it prevents checks on goods from Northern Ireland (part of the UK) into the Republic of Ireland (part of the EU) in an effort to preserve the 1998 Good Friday Agreement , which ended decades of sectarian violence in Ireland.
But it does mean that Northern Ireland must follow the EU single market rules, resulting in controls on certain products coming from England, Scotland and Wales to Northern Ireland.
This has sparked protests from trade unionists in Northern Ireland who say the protocol weakens ties with the rest of the UK and has created shortages.
The European Union in mid-October agreed to a reduction in customs checks and paperwork between the UK and Northern Ireland.
These were special provisions for exclusive UK products, ending the so-called “sausage wars” that made headlines during the summer.
However, they refused to rule out the supervisory role of the European Court of Justice in relation to the Northern Ireland Protocol, as the British government had wanted.
What is article 16 of the protocol?
Article 16 is a mechanism that allows either party to unilaterally take safeguard measures in the event that the protocol creates “serious economic, social or environmental difficulties that may persist or divert trade.”
It is not clear what the safeguard measures that London already unilaterally exempted from customs controls on some goods traveling from Great Britain to Northern Ireland are considering. But they could see the UK suspend all its trade obligations under the protocol, experts say.
The measures are intended to be restricted in scope and duration to what is “strictly necessary to remedy the situation,” the article says.
In other words, the measures are not intended to interrupt the operation of the protocol or suspend the protocol.
If the EU or UK activate the clause, the other party can take proportionate measures to “remedy the imbalance”.
The party planning to apply safeguard measures must notify the other party “without delay” and provide “all relevant information”. Both the UK and the EU will start consultations to find a solution immediately.
Has Article 16 been activated?
The EU approached previously to activate Article 16 in the middle of a dispute with the pharmaceutical company AstraZeneca.
They considered activating the article to impose controls on the export of COVID-19 vaccines from the European Union to Northern Ireland, amid concerns that vaccines manufactured in the EU will be shipped to the UK.
But the Commission quickly took a 180-degree turn amid strong criticism from the Irish and British governments.
A July 2021 UK government document on the protocol stated that “there are circumstances to justify the use of Article 16” due to trade disruptions in Northern Ireland.
The UK and the EU have already entered into talks to resolve the trade dispute.
Brexit Minister David Frost told parliament in late October that “it is no secret that if we cannot come to an agreement and we are still facing a major political issue in Northern Ireland, Article 16 exists.”
What safeguard measures can the UK take?
“It is not entirely clear what the UK government would do with Article 16 and what action it would take,” Jess Sargeant, lead researcher at the Institute for Government think tank, told Euronews.
London has already unilaterally introduced grace periods on customs controls for certain goods and the Protocol states that any measure must address a specific problem.
“If the UK government says there are problems arising from customs processes, they could claim that eliminating those processes through the use of Article 16 is eliminating the problem,” continued Sargeant.
“But there is the suggestion that the UK government could go further and use Article 16 to try to suspend almost all of its trade-related obligations under the Protocol.
“It is not exactly clear if that would be strictly in accordance with the terms of Article 16, or if it would act outside of this. So we still don’t know exactly what it would be like in practice.”
What can the EU do then?
Under the Protocol, the activation of Article 16 is immediately followed by one month of negotiations between the UK and the EU Joint Committee before safeguard measures are introduced. Once introduced, they must be reviewed every three months.
However, if Brussels decides that London is using Article 16 improperly or is in breach of the Withdrawal Agreement, it could resort to the dispute settlement mechanism.
“This would create an arbitration panel that would consider the matter and raise an opinion on whether the UK has violated protocol and the [Brexit] Withdrawal agreement more broadly, “Sargeant said.
“If it finds that it has violated it, then the EU could suspend parts of the Withdrawal Agreement and also the Trade and Cooperation Agreement,” which would allow it to impose tariffs in some areas.
“That’s quite a long process. It will likely take several years to get to the point of introducing tariffs or cost retaliation through the Trade and Cooperation Agreement,” Sargeant said.
However, the EU could take some unilateral measures in the meantime. This could include withdrawing the data adequacy granted to the UK, allowing personal data to flow between the two parties.
“There is also a suggestion that it might decide to suspend the Trade and Cooperation Agreement entirely,” he said. This would take between nine and 12 months and result in the introduction of significant barriers in areas such as trade, law enforcement, judicial cooperation, aviation, road transport, and energy, among others.
What about Northern Ireland?
If the EU decides to go through the arbitration process and your claim is found to be legitimate, then it would be allowed to take retaliatory action.
According to Sargeant, the obvious counterbalance to a British decision to relinquish any form of control between Great Britain and Northern Ireland would be for the EU to impose controls between Northern Ireland and the Republic or between the Republic and the rest of the EU.
But the bloc is unlikely to proceed with such measures in an attempt to preserve peace on the island of Ireland, Sargeant said.
“That is a good thing for Northern Ireland and stability, but at the same time, perhaps it will give the EU less influence than it could have had otherwise,” he said.
Instead, the EU will likely target Britain by ensuring that it no longer benefits from the Trade and Cooperation Agreement.
But while it may appear that the UK has the upper hand given Brussels’ reluctance to impose controls on the island of Ireland, activating Article 16 would still be “particularly bad for Northern Ireland and many companies are particularly concerned that this could lead to to more uncertainty, which could hurt them even more, “Sargeant said.
“There is also the question of the type of political conflict it could create in Northern Ireland, where this protocol has been a very contentious issue,” he warned.
“It is unclear if part of this threat to activate Article 16 is trying to gain influence in the current discussions that are underway. If the EU believes that the UK is willing to activate Article 16 then it might be willing to be more flexible or give a little more in these negotiations on the protocol that are underway ”, he concluded.
George is Digismak’s reported cum editor with 13 years of experience in Journalism