Article 16 should not be regarded as a mechanism which offers an immediate reversion to the pre-Brexit status quo in response to largely predictable new frictions in goods movement from Britain to Northern Ireland, write Queen’s University Belfast’s Katy Hayward and David Phinnemore.
Transition is over and the Protocol on Ireland/Northern Ireland Protocol is now in operation. The first weeks have not been without their difficulties. There have been significant disruptions to the movement of goods from the rest of the United Kingdom (UK) into Northern Ireland, ongoing domestic political tensions around the Protocol as well as a near crisis in its implementation as the European Commission came perilously close to adopting unnecessary safeguard measures on the potential movement of Covid vaccines from Ireland into Northern Ireland.
The difficulties have arisen because since 1 January 2021, Northern Ireland is effectively inside the customs territory of the European Union and its internal market for goods while the rest of the UK is now outside. This means new and additional formalities, checks and controls for the movement of goods across the Irish Sea. And what this means in practice is now being observed. From pets to British Army vehicles, goods entering Northern Ireland from the rest of the UK now require new paperwork. In some instances, like vegetable seeds or glass eels, such movement cannot take place at all.
In many ways, this is quite predictable. Just as Brexit means there is no longer the free movement of goods, services, capital and people between the UK and the EU, so the Protocol, in avoiding a hard border on the island of Ireland, entails new frictions on the movement of goods into Northern Ireland from the rest of the UK.
The Protocol is a unique arrangement the implementation of which, it was anticipated, would be based on agreed processes and involve ongoing consultation and deliberation. Any difficulties would be dealt with, in the first instance, by officials from both sides, and any necessary action beyond what has already been agreed in the Protocol taken by joint agreement. The Protocol is after all, an international agreement. As such, it constrains the scope for unilateral action.
Nonetheless, unilateral action is allowed for in Article 16, which concerns safeguard measures and the mechanisms for putting them in place. Such provisions are common in trade agreements. But, they are rarely used.
The purpose of safeguards is not to see the collapse of the trade agreement, but rather to help resolve unanticipated problems in a way that avoids worsening difficulties, and thus allows the agreement to endure. They should be used only in exceptional circumstances and thought of very much as a last resort. This explains some of the furore in late January that led to the European Commission’s decision not to proceed after all with triggering Article 16.
“The purpose of safeguards is not to see the collapse of the trade agreement, but rather to help resolve unanticipated problems in a way that avoids worsening difficulties, and thus allows the agreement to endure.”
The provisions contained in Article 16 permit the UK and the EU to act unilaterally if application of the Protocol is leading to ‘economic, societal or environmental difficulties’. They do not specify what constitutes a ‘serious’ difficulty. Nor do they define what constitutes a ‘diversion of trade’; the second justification for safeguard measures. The provisions are explicit, however, that difficulties must be both ‘serious’ and ‘liable to persist’. Normally, consultation is required before any measures can be taken. However, ‘protective measures strictly necessary to remedy the situation’ can be taken where ‘exceptional circumstances requiring action exclude prior consultation’. Presumably, whoever proposed that the European Commission trigger Article 16, thought this to be the case.
Safeguard measures should not, therefore, as a matter of principle, be triggered lightly. As a mechanism for addressing ‘serious’ difficulties, Article 16 should not be regarded as a means of instantly turning things back to the way they were. Moreover, due process should be followed. This is set out in Annex 7 to the Protocol.
So, if either the UK or the EU is so much as ‘considering’ adopting safeguard measures, it must normally notify the other party ‘without delay’ through the UK-EU Joint Committee. When doing so, it must provide ‘all relevant information’ (i.e. details of the ‘serious economic, societal or environmental difficulties’), explain why unilateral action is needed, what the proposed action and the justification for it.
The UK and EU then consult with a view to finding a ‘commonly acceptable solution’. During the first month, no safeguard measure may be adopted unless ‘exceptional circumstances require immediate action’. Common sense would tell us that ‘exceptional circumstances’ are ones that could not have been readily predictable as a consequence of the Protocol’s provisions. Worth noting here is that the UK has plentiful experience of applying the Union Customs Code and EU laws on the free movements of goods having done so throughout is membership on the EU.
If, at the end of that initial process, unilateral safeguards are adopted, priority ‘shall’ be given to those that ‘will least disturb the functioning’ of the Protocol. Such measures are to be ‘restricted with regard to their scope and duration’ and to what is ‘strictly necessary’ to address the difficulty or difficulties being faced. Measures should have minimal impact on the overall operation of the Protocol, which continues to apply. Both parties can still be held to their obligations.
Measures must be notified to the UK-EU Joint Committee ‘without delay’ and discussed every three months, with a view to limiting their scope and abolishing them as soon as possible. At any point, either the UK or the EU can request that the measures are reviewed.
This also applies to any ‘rebalancing’ measures taken by the other party. Such measures are permitted because the Protocol is a jointly agreed set of arrangements that create a balance of rights and obligations. Any rebalancing measure must, however, be ‘proportionate’, with minimal disruption to the overall functioning of the Protocol.
In sum, Article 16 is not a route to the unilateral disapplication of the whole Protocol. Safeguards are present as temporary and limited measures. Moreover, actually adopting unilateral measures normally assumes a joint approach to addressing the ‘serious’ difficulties has proven impossible.
There are also wider political considerations. A hasty and unnecessary recourse to unilateral safeguard measures does little to enhance levels of trust within a relationship. As is clear from events in January, unilateral measures under Article 16 should only be taken after proper consultation and consideration of the unique circumstances of Northern Ireland.
Implementation of the Protocol is going to be complicated and difficult. It entails considerable adjustment, just as the whole Brexit process does. After a long process of negotiation to get to the Protocol, the UK and EU now have to adjust to a new relationship and make it work in practice. This will entail consultation and deliberation, and it will be hard work and complex, particularly in this first year. There is no quick fix for that.
Katy Hayward is Professor of Political Sociology at Queen’s University Belfast and a Senior Fellow of the ESRC-funded UK in a Changing Europe initiative.
David Phinnemore is a Professor of European Politics at Queen’s University Belfast.