Article 16: pressing the ‘emergency eject’ button will create more problems than it solves

There is increasing concern that the UK Government might soon trigger Article 16 of the Northern Ireland Protocol, which allows the UK or EU to take unilateral ‘safeguard’ measures if either side decides that the deal is creating serious problems. Hitting the Protocol emergency escape button this close to Christmas could be disastrous.

Article 16 is a weapon of last resort. It is intended for use only if the Northern Ireland Protocol agreement is causing long-term “economic, societal or environmental difficulties”. Instead, the UK’s main justification for its implementation seems to be ideological: it no longer wants the European Court of Justice (ECJ) to have an oversight role in the deal.

The Government’s Brexit Minister, Lord Frost, said on Friday that triggering Article 16 is “very much on the table and has been since July”. If the Government does invoke Article 16, what exactly does it expect will happen?

Article 16 exists to fix difficulties with the Northern Ireland Protocol that may cause serious problems or divert trade. It was envisaged as a “Safeguard” to be used in a targeted way to fix specific issues. However, the EU fears the UK is planning to use Article 16 like a nuclear button, by entirely suspending articles 5,7, 8 and 10. This would demolish customs, product standards, VAT and state aid rules, while opening a potential back door into the single market. Using Article 16 in this way makes it as much of a “safeguard” as Mutually Assured Destruction (MAD) safeguards us from nuclear attack.

Belgium’s Deputy Prime Minister, Vincent Van Peteghemhas, has already warned that if Britain reneges significantly on the current Northern Ireland border solution, the EU may give notice that it intends to collapse the entire trade deal. A clause in the UK/EU Trade and Cooperation Agreement (TCA) allows either side to terminate the whole deal with a year’s notice. If that happened, it would effectively send us spiralling back towards a no-deal Brexit, with tariffs on most goods and many other restrictions on EU-UK trade.

Even though there is a 12 months notice period for the trade agreement to be suspended, the UK should not bank on there being no immediate repercussions. Some analysts are saying the EU’s response could be “explosive”. Keep in mind how swift the French Government was to plan increased checks on goods to and from the UK during the recent fishing boat licence dispute. It’s entirely possible that similar measures might be taken EU-wide in the run-up to Christmas, to make the point to other nations that the EU is not to be trifled with in this way. Increased checks would quickly create long tailbacks and delay UK imports and exports in the vital pre-Christmas period.

ParcelHero’s in-depth analysis of the ongoing UK-EU trade problems and, in particular, the Northern Ireland Protocol agreement can be seen at:  https://www.parcelhero.com/research/brexit-study