The UK Brexit minister, David Frost, has stepped up demands on the EU to renegotiate the Northern Ireland protocol, a linchpin of Boris Johnson’s Brexit deal. At a speech to the Conservative party conference, Frost said “tinkering around the edges” of the protocol would not be enough. “We cannot wait for ever. Without an agreed solution soon, we will need to act, using the article 16 safeguard mechanism, to address the impact the protocol is having on Northern Ireland.” What is article 16? Article 16 is an emergency brake in the Irish protocol, the agreement that left Northern Ireland in the EU’s single market and customs union to make Johnson’s Brexit model compatible with avoiding a hard border on the island of Ireland. Article 16 allows either side to take unilateral action if the protocol is causing “serious economic, societal or environmental difficulties that are liable to persist”, or diversion of trade. Serious difficulties are not defined, giving both sides leeway for interpretation. For example, the government might refuse to carry out checks on goods entering Northern Ireland from Great Britain, by arguing such checks are diverting trade and causing difficulties for businesses. Does article 16 cancel the protocol? No. Article 16 is not a magic wand that waves away the protocol. It is only the start of another lengthy process with the EU. This process is detailed in the protocol’s annexe 7 – another treaty clause that could soon enter the Brexit lexicon.
Under annexe 7, triggering article 16 launches a process of “consultations … with a view to finding a commonly acceptable solution”. These talks happen through the joint committee, the political oversight group led by Frost and his EU counterpart, the European Commission vice-president, Maroš Šefčovič. The government would have to give one month’s notice of any unilateral action, such as suspending NI/GB customs checks. It would also be expected to take part in regular consultations with the EU every three months, with the aim of returning to protocol rules. Article 16 is meant to be a temporary timeout, not an escape hatch. How could the EU react? If either side disagrees with unilateral safeguard action, they can retaliate with “proportionate rebalancing measures”. For example, the EU could hit British imports into the EU with tariffs, a part-suspension of the broader EU-UK free-trade deal. The same bureaucratic process of notice and consultation would apply to retaliatory measures. Has anyone ever triggered article 16? No. But the EU came closest in January, when it threatened emergency controls on coronavirus vaccine exports at the Irish border to prevent the scarce jabs from leaving the bloc, triggering uproar at Westminster and Dublin. EU politicians later described the threat by the European Commission president, Ursula von der Leyen’s, team, which was withdrawn after a few hours of frantic phone calls, as “an accident” and “a mishap”. The government has repeatedly seized on the EU’s blunder to demand renegotiation of the protocol. So will article 16 be triggered? It’s an open question. Frost, the man who negotiated Johnson’s Brexit deal, called for a root-and-branch renegotiation of the protocol, including removing all customs checks on goods entering Northern Ireland from Great Britain, and abandoning the role of the European court of justice. The European Commission plans to unveil its response to his July proposals next week, but has ruled out renegotiation. Frost evidently fears the EU will not go far enough, telling Tory activists he may have no choice but to trigger article 16. He is convinced that playing hard ball with Brussels pays dividends, having accused Theresa May’s government of failing to be tough enough. The EU hopes his speech – which included the crowd-pleasing line “the long bad dream of our EU membership is over” – is merely grist to the Tory party conference mill. Šefčovič’s team are aiming for agreement on changes to the protocol by the end of the year. But many Brexit deadlines have come and gone. And nobody rules out that the government may move into uncharted waters by triggering article 16.