A lot of attention has been placed on Article 16 of the Withdrawal Agreement’s Protocol on Ireland/Northern Ireland. But what is it, how does it work, and what would using it mean?
What is Article 16?
It is common for trade agreements to contain provisions enabling either party to take unilateral action if the implementation of the agreement gives rise to negative consequences. In the Protocol on Ireland/Northern Ireland, these measures are set out under Article 16.
Such ‘safeguards’ as those in the Protocol are not commonly used, but are included as a protective measure to give both parties a formal recourse of action should the agreement entail any unintended outcomes that present significant challenges in either place.
When can it be used?
Article 16 provides both the UK and the EU with a unilateral power to take action should the application of the Protocol give rise to ‘serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade.’
Both parties are restricted in the action they can take to address any such issues. It must be limited to the scope of where the problems exist (i.e. a response cannot be taken that will alter the application of the Protocol in any unrelated respect) and there is a process in place which means action cannot happen on a whim or go unchecked.
Article 16 does not provide any detail on what constitutes a ‘serious’ impact or what is meant by ‘diversion of trade’. What causes a serious impact in one place might not in another, so this ambiguity allows for interpretation at a later point.
But the intent behind the agreement is that neither side will seek to act unilaterally to alter the Protocol, and that resolutions will be found through cooperation in the first instance.
The Protocol provides for this through a committee structure. A Joint Consultative Working Group has been established (Article 15), which facilitates regular dialogue between the EU and the UK on the implementation of the Protocol.
This is a forum for deliberation and consultation, which may be enough in some cases to smooth certain matters before they become issues, but it does not hold any decision-making powers.
This body feeds into the work of the Specialised Committee on the Protocol on Ireland/Northern Ireland (Article 14), which in turn makes recommendations to the Joint Committee. The Joint Committee is where final decisions are made.
The implication is that the safeguard provisions in Article 16 will only be used if the circumstances are beyond anything that could have been reasonably anticipated, and so have not been explicitly addressed within the body of the agreement itself.
If dialogue also fails to resolve the issues, Article 16 means that the EU and the UK still have a mechanism available that will enable their interests to be protected.
But this is not the first port of call; Article 16 is a last resort.
How does it work?
If unilateral action is deemed necessary by either the UK or the EU, this starts a process, outlined in Annex 7 of the Protocol. Before any action is taken, the party considering it must work through the Joint Committee to notify the other ‘without delay’.
The UK and the EU will immediately enter talks through the Joint Committee with a view to finding ‘a commonly acceptable solution.’
No safeguard measures may be enacted until one month after this, or earlier if the consultation process concludes before this point. Only ‘exceptional circumstances’ permit action to commence straight away.
Should either the EU or the UK have to adopt safeguard measures, the Joint Committee is informed of what these are. These are reviewed every three months, with the intention of finding a resolution.
In addition, should one party adopt safeguard measures, Article 16 permits the other party to take ‘proportionate rebalancing measures’ to ensure rights and obligations under the Protocol remain in balance. The Joint Committee is kept informed of these, and they are also reviewed every three months alongside the measures that have been taken by the initiating state.
Can it be used to disapply the Protocol?
As unilateral action under Article 16 is required to be specific and limited only to the aspect(s) of the Protocol at fault, all other aspects of the Protocol will remain in place throughout.
The Protocol in its entirety will remain unaffected until such a time as either agreement is reached on resolutions or unilateral action is taken.
So, in short, the answer is no – Article 16 cannot be used to disapply the Protocol.
Under Article 18 of the Protocol, democratic consent is required for the continued application of Articles 5-10 of the Protocol.
A vote in 2024 will determine this. However, this is not in any way linked to Article 16, and only relates to these specific articles.
Why has Article 16 become so important?
Calls for the UK to use Article 16 in response to the issues that have been seen with regard to trade between Great Britain and Northern Ireland have become confused by political rhetoric which has created the impression that invoking it will bring a speedy resolution and/or a return to arrangements as they were before the Protocol came into force. This is not the case.
While none of the practical issues seen to date in relation to Northern Ireland were unforeseeable, matters beyond these technicalities have brought the situation to a point that could not have feasibly been prepared for in the Protocol.
Confused political messaging about what the Protocol would look like in practice has further added to a sense that the challenges being seen in Northern Ireland are unexpected. This is why, for some, Article 16 is seen to provide the most appropriate course of action.
News in January 2021 that the EU came close to using Article 16 to prevent the movement of Covid-19 vaccinations across the island of Ireland added further pressure to calls for the UK to use Article 16.
In response to the situation, the Prime Minister indicated to the House of Commons on 3 February 2021 that he would be prepared to invoke Article 16 in order to ‘ensure that there is no barrier down the Irish Sea’.
The use of the Joint Committee to address the fallout from the incident was an early example of the proper mechanisms for issues relating to the Protocol being used.
The UK Government published a Command Paper on the Protocol in July 2021 which noted that an argument existed for invoking Article 16 but that dialogue was the preferred course of action.
This approach was reiterated on 4 May 2022 by the Secretary of State for Northern Ireland when pressed on reports that emerged in April 2022 of legislation under preparation that would facilitate the unilateral disapplication of elements of the Protocol by UK ministers. However, it is not beyond the realms of possibility that the UK could move the threat of Article 16 to action at another point in the future, should wider political circumstances be favourable to it.
Currently, the lingering potential of Article 16 being imminently used is a contributing factor to political difficulties in Northern Ireland. The Democratic Unionist Party (DUP) collapsed the executive in February 2022 in protest at the Protocol, and the party has indicated that it is unlikely to return to power-sharing after the election until changes have been secured to the Protocol.
This means that the immediate future of Northern Ireland’s institutions rests largely with the Prime Minister’s decisions around the Protocol – including whether to use Article 16 – and the progress of UK-EU talks. Expect Article 16 to remain on the agenda for the foreseeable future.
By Dr Clare Rice, Research Assistant at the Newcastle University Law School. For more on the Protocol on Ireland/Northern Ireland, watch our animated video here. This explainer was updated on 4 May 2022.