The post Brexit relationship between the UK government and the EU is marked by continual tension including numerous issues arising in connection with the Northern Ireland Protocol (NIP). The NIP is an integral part of the Withdrawal Agreement entered into between the UK and EU in 2019 –
The purpose of the NIP is to prevent a hard border between Ireland (a member State of the EU) and Northern Ireland (part of the UK). The protocol requires Northern Ireland to align with EU law in some areas in order to maintain frictionless access to the EU. Goods entering Northern Ireland from Great Britain have to prove that they comply with EU law in those areas.
In July 2021
the UK government published a command paper which sought a “new and enduring consensus”. The proposals in the command paper would require “significant change to the current protocol” and the paper went on to claim that the “circumstances exists to justify using Article 16” but the UK was not going to “trigger” the article though the option to do so “remains on the table”.
The EU response may be read at the European Commission’s website – HERE.
A good summary of the position between the UK and the EU was published by the Institute for Government in mid October 2021.
What then is Article 16?
Article 182 of the Withdrawal Agreement specifies that the NIP is a integral part of the withdrawal agreement. The NIP is set out from page 292 and Article 16 is at page 321.
1. If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol.
2. If a safeguard measure taken by the Union or the United Kingdom, as the case may be, in accordance with paragraph 1 creates an imbalance between the rights and obligations under this Protocol, the Union or the United Kingdom, as the case may be, may take such proportionate rebalancing measures as are strictly necessary to remedy the imbalance. Priority shall be given to such measures as will least disturb the functioning of this Protocol.
The article has a certain vagueness about it. For instance, there is no definition of “serious” but it seems clear that any “economic, societal or environmental difficulties” would have to be considerable and, as the article states, liable to persist.
Even if that initial hurdle is overcome, the article is clear that safeguard measures are restricted to what is strictly necessary to remedy the situation.
Above all, triggering article 16 would not automatically suspend the operation of the protocol – (as I have seen suggested in some places).
Annex 7 to the protocol then applies. This is at page 422.
PROCEDURES REFERRED TO IN ARTICLE 16(3)
1. Where the Union or the United Kingdom is considering taking safeguard measures under Article 16(1) of this Protocol, it shall, without delay, notify the Union or the United Kingdom, as the case may be, through the Joint Committee and shall provide all relevant information.
2. The Union and the United Kingdom shall immediately enter into consultations in the Joint Committee with a view to finding a commonly acceptable solution.
3. The Union or the United Kingdom, as the case may be, may not take safeguard measures until 1 month has elapsed after the date of notification under point 1, unless the consultation procedure under point 2 has been concluded before the expiration of the state limit. When exceptional circumstances requiring immediate action exclude prior examination, the Union or the United Kingdom, as the case may be, may apply forthwith the protective measures strictly necessary to remedy the situation.
4. The Union or the United Kingdom, as the case may be, shall, without delay, notify the measures taken to the Joint Committee and shall provide all relevant information.
5. The safeguard measures taken shall be the subject of consultations in the Joint Committee every 3 months from the date of their adoption with a view to their abolition before the date of expiry envisaged, or to the limitation of their scope of application. The Union or the United Kingdom, as the case may be, may at any time request the Joint Committee to review such measures.
6. Points 1 to 5 shall apply, mutatis mutandis, to rebalancing measures referred to in Article 16(2) of this Protocol.
Under paragraph 1, if the UK is actually considering safeguard measures then it must inform the EU via the Joint Committee and consultations in the Joint Committee then commence to find a commonly acceptable solution. Under paragraph 5, consultations continue even if safeguard measures are applied.
At least on paper (or screen), that is as far as Article 16 and Annex 1 go. In the world of realpolitik is difficult to forecast what might actually happen. A possibility is that the Trade and Cooperation Agreement (the TCA) might itself be questioned.
The TCA Article 779 provides for Termination of the TCA. “Either Party may terminate this Agreement by written notification through diplomatic channels. This Agreement and any supplementing agreement shall cease to be in force on the first day of the twelfth month following the date of notification.”
At the end of 2020 the TCA, for all its faults, was generally welcomed as preferable to a “no deal” Brexit. It is to be hoped that good sense will prevail and that the current problems over the NIP can be sensibly resolved.
One sticking point seems to be the role of the EU Court of Justice. As the Institute for Government article states, the application of EU law in Northern Ireland is subject to EU oversight and that could result in the EU Commission taking legal action against the UK as if it were a member State. [This was of course agreed to by the UK when it entered the withdrawal agreement but now has become a serious issue. Many Conservative MPs seem to have a visceral dislike of the court]. In practice, very few traders have raised the role of the court as a barrier to trade between Great Britain and Northern Ireland.
Certain legal actions were commenced in March 2021 by the EU Commission in response to actions taken by the UK but those actions were subsequently paused. Whether the EU was rather too quick to commence such proceedings is a point for debate but the mindset of some British Brexiter politicians will hardly have been warmed toward the EU.
8 November 2021