Could the EU be about to trigger Article 16 of the Northern Ireland Protocol again?
The original Northern Ireland Protocol, you would be forgiven for forgetting, contained a safeguard called Article 16, which was once frequently in the news. This “emergency clause” could in theory be triggered by either the UK or the EU, “if the application of the (Irish Sea border) leads to serious economic, societal or environmental difficulties that are likely to persist, or to diversion of trade.” Since January 2021, when the agreement was first implemented, this threshold has been met, arguably, many times over, certainly from the British perspective.
For example, the protocol caused Northern Ireland’s power-sharing institutions to collapse for two years, while protests broke out on Ulster’s streets, some of them violent. Strong proof of “societal difficulties” at the very least. Similarly, many of the province’s businesses have explained repeatedly the economic problems caused by the sea border and argued that it has produced no advantages. Most blatantly, the protocol and the Windsor Framework (which entrenched the sea border rather than mitigating it) have led to significant and sustained trade diversion.
According to the FSB, over one third of the businesses that previously traded between Great Britain and Northern Ireland have simply stopped, thanks to new checks and bureaucracy. Meanwhile, trade has increased very rapidly between the Republic and Northern Ireland. Companies in the province have been forced to switch to southern Irish suppliers, rather than sourcing goods elsewhere in the UK, often incurring greater costs as a result. The managing director of the Road Haulage Association, Richard Smith, recently wrote that the framework had delivered only, “higher costs for business and less choice and increased prices for Northern Ireland consumers.”
Despite all this evidence of economic upheaval and political disruption, successive governments have declined, for the most part, to even seriously consider triggering Article 16. Under Boris Johnson, the Conservatives blustered about potentially activating the clause, as they became frustrated with the EU’s mulish refusal to recognise that the protocol wasn’t working. The former Brexit minister, Lord Frost, claimed that the PM would have triggered it late in 2021 had it not been for an upsurge in Covid-19 cases. But Johnson, let’s remember, said and threatened many things that were never delivered.
In fact, only one attempt has been made so far to trigger the article, and that was by the EU. In January 2021, the European Commission chief, Ursula von der Leyen, threatened to cut pandemic vaccine supplies to Northern Ireland because of a row over the Oxford-AstraZeneca jab. Even the EU’s most slavish adherents in Ulster condemned this extraordinary intervention, and Brussels eventually backed down. In its defence, though, it had waited almost a full month after the protocol was implemented before using its “option of last resort” to bully Britain. None of this, incidentally, prevented the EU from reacting in the most hysterical tone to any later suggestion that the UK might be forced to use Article 16.
The current Labour government, under Keir Starmer, has shown even less interest than its Conservative predecessors in properly challenging Brussels’ maltreatment of Northern Ireland, never mind Dublin’s seething passive-aggressive hostility towards Britain. Ministers argue that they must implement the Windsor Framework “faithfully”, to repair damaged relationships with the EU. Their good faith could soon be met by another attempt by the Irish and the EU to trigger Article 16.
The Irish republic’s pharmaceutical industry faces the threat of punishing tariffs that the recent US / EU trade deal did not alleviate. The UK, meanwhile, has brokered a comparatively favourable agreement with President Trump, and, in theory, Northern Ireland firms could benefit.
The UK’s export tariffs for the US are set at 10 per cent, whereas Dublin faces 15 per cent levies, alongside the rest of the EU. The Ulster Unionist MLA, Steve Aiken, claimed this week that the Irish were poised, “unilaterally to take action to protect their market”. The irony is that the protocol/framework’s advocates claimed it was necessary specifically to prevent harm to Northern Ireland’s economy. They made false assertions that the province’s interests lay in retaining the closest possible economic ties with Dublin rather than Great Britain, even though every statistic suggested otherwise.
This is not the first evidence of blatant hypocrisy on the protocol from the Irish government either. It insisted that Northern Ireland must be cut off from the rest of the UK, because no checks or infrastructure could be contemplated on its border with the republic. Yet, it subsequently implemented tighter controls on immigration at the Irish frontier, blaming its own issues with undocumented migrants on British government policy. There could be a harder border when it suited Dublin, but not if it was necessary to protect Northern Ireland’s place in the UK internal market.
If Article 16 is applied though, it will most of all expose this government’s snivelling, obsequious attitude to Brussels
Apart from the three Ulster unionist parties at Stormont and Westminster, the province is afflicted with political representatives who are either fanatically europhile, like the Alliance Party, or, in the case of nationalists, committed to building an “all-island economy” irrespective of the pain that involves. They claimed repeatedly that pro-Union politicians were being unreasonable or irresponsible, when they insisted that the framework would damage Northern Ireland rather than seeking to praise its elusive “benefits”. It is highly unlikely that they will speak up against the EU or their sponsors in Dublin, even if they trigger a measure that is designed specifically to prevent Ulster’s businesses from cashing in on a British trade deal.
If Article 16 is applied though, it will most of all expose this government’s snivelling, obsequious attitude to Brussels (and to foreign policy more generally). Under Keir Starmer, the rest of the world is practically invited to take advantage of the United Kingdom. When Britain’s leadership is so obviously weak and craving international approval, why would it not?
