Explained: What is Article 16 and will it be triggered?

 Explained: What is Article 16 and will it be triggered?

For months now, Boris Johnson’s Government has been warning that the requirements have been met for triggering Article 16, which is contained in the Northern Ireland Protocol

Talks over the Protocol, part of the Brexit Withdrawal Agreement, have been ongoing and a decision on whether to trigger it is expected at the end of November.

But what are the ramifications of going ahead with such a move? Here is everything you need to know about the contentious clause. 

What is Article 16?

As part of Boris Johnson’s renegotiation of the Withdrawal Agreement in October 2019, the UK and the EU agreed to the Northern Ireland Protocol, which leaves the province in the EU’s single market for goods.

It means goods can flow freely between the Republic of Ireland and Northern Ireland. However, there are customs controls on all goods shipped from Great Britain into Northern Ireland.

Article 16 is a safeguard clause in the protocol, which the UK or EU can trigger if they believe the Brexit rules in the province have caused “serious economic, societal or environmental difficulties” or a “diversion of trade”.

The British Government has argued that the threshold for this has already been reached as a result of trade chaos caused by the protocol. The Prime Minister believes the Brexit treaty needs to be overhauled, because it has caused much more disruption than anticipated.

The protocol has lost the support of the Unionist community because it has created a trade border in the Irish Sea, essentially driving a wedge between Northern Ireland and the rest of the United Kingdom.

What happens when Article 16 is triggered?

To trigger Article 16, the UK must notify the European Commission of its intentions, including how it intends to address the difficulties it believes have been caused by the Northern Ireland Protocol.

The two sides then immediately enter into a month-long consultation period to discuss the British proposals. 

Downing Street is not allowed to introduce its changes to the protocol during this time, unless there are “exceptional circumstances”, where the Government believes immediate action is needed.

The EU’s response will depend on how far the UK intends to go after triggering Article 16. If London identifies limited and specific tweaks to the treaty, the bloc could take basic steps to address those concerns. Maros Sefcovic, a European Commission vice-president, has warned there will be “serious consequences” if Britain goes further with its proposed changes.

How will the EU respond to Article 16?

Triggering Article 16 will lead to instant backlash from Brussels and European capitals. 

Hardliners in the Commission, France and Ireland will accuse Britain of poisoning the well and acting in bad faith by ripping up the arrangements that were only agreed recently.

Initial anger will be met by calls for the post-Brexit trade pact to be suspended. The Commission will have to decide whether that is a justified response to Britain’s move.

EU nations will throw their support behind Dublin, which is seen as the most affected by Article 16. Paris would also be likely to take the most hardline position and call for punitive trade sanctions, given President Emmanuel Macron has his own long-running spat with Britain over fishing rights.

Despite calls for the Commission to set out a concrete list of potential retaliations, Mr Sefcovic has so far refused, telling member states they must let the negotiations over the protocol play out first.

Will the UK trigger Article 16?

The Prime Minister and his lead negotiator, Lord Frost, have stressed that a negotiated outcome is the Government’s preferred solution. However, Article 16 remains on the table as a legitimate tool to address the UK’s concerns over the Northern Ireland Protocol.

It has been claimed that the Government could trigger the mechanism before the new year if there is not genuine progress in the talks over a new Brexit deal for the province.

UK and EU sources have both indicated that they feel Article 16 is still a long way off, because progress is being made behind the scenes in the negotiations, albeit limited.

Dominic Cummings, Mr Johnson’s former chief adviser, has urged MPs to lobby the Prime Minister not to use Article 16, as it would cause economic and reputational harm to the UK.

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