14th September 2021
The Brexit minister David Frost has said that he is considering triggering article 16 in respect of the ongoing discussions between the United Kingdom and the European Union.
Lord Frost with very punchy words on the NI Protocol in the Lords tonight:
— Adam Payne (@adampayne26) September 13, 2021
EU would be “making a serious mistake” if they thought the UK wasn’t ready to trigger Article 16
There must be a “real negotiation,” not EU saying presenting their proposals as “take it or leave it”… pic.twitter.com/RbjyryrPLW
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This sounds all very portentous.
But what does it actually mean?
What is article 16?
The blogpost below is based on an extract from an earlier longer explainer posted on this blog back in January 2021 (when the European Commission clumsily and perhaps inadvertently seemed to trigger article 16 and then promptly untriggered it).
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Let’s begin with what is an ‘article’.
One of the blessings of Brexit is dealing with ‘articles’ of international legal instruments – most famously article 50 of the treaty on European Union.
The word ‘article’ is somehow grander than the more mundane ‘section’ and the everyday ‘clause’.
Indeed articles tend to be more self-contained as legal provisions – sometimes like micro legal instruments within macro legal instruments like treaties.
And article 16 – together with a dedicated annex – is such a micro legal instrument.
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Article 16 is part of the Northern Irish protocol, which in turn is a protocol to the withdrawal agreement.
Instruments within instruments within instruments.
Article 16 provides in its entirety (and you should read every word, as they will matter): 
In essence: the ‘if [x] then [y]’ here is ‘if [there are certain difficulties in the application of the Northern Irish protocol] then [appropriate safeguard measures can be taken]’.
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The article is entitled ‘Safeguards’ – but straight away you will see that the provision is itself subject to its own safeguards – and this is important because, as you can see, what is or can be a ‘safeguard measure’ is not defined.
First.
In paragraph 1, the trigger for the safeguards has to be a serious situation that is likely to persist.
Second.
It then provides that any safeguards will be ‘restricted’ to what is ‘strictly necessary’ for the purpose of remedying that particular serious situation.
Third.
And ‘priority’ shall be given to what measures that cause the least disturbance.
One, two, three.
So: triggering article 16 does not mean anything goes.
Anything Frost proposes will have to meet these three substantive tests.
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And there is more.
In paragraph 2, any imbalances caused by the uses of the safeguards can be addressed with counter measures: so the article is not a unilateral tool.
If the United Kingdom takes measures under article 16 then the European Union can take countermeasures too.
Paragraph 3 then states that a prescribed process has also to be followed, as set out in an annex.
Strictly speaking: triggering article 16 does not trigger the right to take safeguard measures, but triggers a process that may in turn lead to such measures.
The annex supplements the substantive conditions on the use of Article 16 safeguards with procedural protections (and, again, this provision should be read in full): 
In essence: notification, talking shop, delay for a month, adoption of measures, further notification, regular consultations on measures, reviews of the measures.
Even in the event of ‘exceptional circumstances’ under point 3 of this annex, there is still a procedure to be followed.
Safeguards within safeguards within safeguards, and so on.
Article 16 ain’t no weapon – it is a remedial tool.
It really is not something to ‘threaten’.
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In summary: invoking article 16 is not to be done casually or by mere oversight.
There are many substantive and procedural conditions to be fulfilled before it can be invoked.
And unless those conditions are met, then article 16 measures are not available.
Even when all the conditions are met, the scheme of the article and the annex is that there would be a collaborative review-and-consultation to the use of the measures.
All this is – or should be – obvious from the title of the article: ‘Safeguards’.
And not Reprisals.
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Something dreadful happened.
Because of a glitch, the initial publication of this post (and thereby the email alert)…
…bunched the sentences into…
…
…paragraphs.
It was horrific, and I don’t think I will ever recover.
I am sorry.
you think you have problems, my Head still hurts after reading art 16 and it’s annex. You dealt with WTO Law for 4 years if I remember right. I admire truely everybody who takes up the duty to deal with such tortured language. Really not my cup of tea
Thank you for your effort and this Blog
Thank you for walking us through that pleasantly straightforward text. That’s rather more than any of the daily papers seem to have done, instead simply falling/failing to filling their column inches with unhelpful “he said, she said, you decide”.
So, as so often with Lord Frost (and the rest of the government that relies upon his skills) the question would seem to be: a fool (who believes in the magic incantations he utters) or a knave (who trusts that he’ll hoodwink the public)?
I also find it interesting that article 16 states that “if the application of the protocol leads to (…) difficulties..” and that any measures taken should “least disturb the functioning of the Protocol”. Arguably the UK hasn’t implemented the protocol fully and difficulties could be due to NOT implementing it fully. Furthermore, if the UK (Frost) has an ulterior motive of getting rid of the Protocol in a de facto way, A16 explicitly states that any measures must protect the functioning of the Protocol. Not make it more dysfunctional.
I honestly don’t think the UK government had a clue to what they were signing, they just had to “get Brexit done” and nothing else mattered. What a shambles!
If they did not have a clue, then they neglected their duty to understand what they were signing.
If they understood it, and signed it in bad faith then that is simply outrageous.
It’s one of the two:
1. Either Frost is an illiterate schoolboy, and the whole cabinet as well, or
2. Frost is a scoundrel, a rascal, and the whole cabinet as well.
Not much to choose from, is there? What is Brexit, after all but ignorance, lack of preparation, arrogance, isolationism, nostalgia, amnesia, demagoguery – all seasoned with a good dose of ontologically unexplainable sense of superiority.
Once again: Dies lapillo signanda cum nigro
It’s not just that: they’re clearly actively ignoring the legal advice from their own lawyers telling them that the intepretation of a16 that they’re presenting is legally incoherent, dishonest nonsense.
But the EU have already, kindly, given us a case study and shown us how low the threshold is for triggering (can you ‘untrigger’ something?) and as a result shown us all how, in practice, the NIP is not fit for purpose.
Maybe you come to conclusion that the threshold for triggering Art.16 is low because you already think the NIP is not fit for purpose?
I fear that you may misunderstand the purpose of Art 16, as DAG demonstrates, it is a pressure valve – when deployed (whomsoever can demonstrate the right to deploy it) it will, by its fullest good faith operation, achieve that intended purpose and thus demonstrate that the NIP as a whole was indeed fit for purpose – that you disagree with its purpose it an issue that should be taken up with those who presented the UK electorate with a DAG’s dinner of a deal
Goodness,
You didn’t read what DAG wrote above, did you?
In order for the EU to trigger Art.16, it would have had to follow the same procedure that Mr. Frost will have to follow to do so.
(The EU had Art. 16 option in a draft version of “steps to safeguard EU’s vaccine supply”, until the Irish, and other literate EU people got to read it. It is a damning indictment of the UK that said incident has been used as a political weapon to incite discord in Northern Ireland. Not surprising though.)
Ergo, the threshold for triggering the Art.16 is not what you think it is.
For better understanding of the mechanism — again, see DAG above.
But when did the EU “trigger” Article 16, and how?
Someone at the EU certainly gave some thought to relying upon Article 16 in one recital of one draft regulation once, about eight months ago. Perhaps they were under the mistaken impression that the Protocol was a simple legal document and not understanding the heavy political baggage it carries in the UK. I’m sure they won’t be making that mistake again.
But was any notification made to the Joint Committee, as Annex 7 requires? If not, the Article 16 safeguard process was never “triggered” by the EU in any meaningful sense at all.
As per my January post – you must admit it is difficult to believe that a provision ends up in a recital in a random way, like an ape typing Shakespeare in an infinite age
So some decision of some kind must have been made by somebody at some point – though that decision was un-made very quickly!
I profess to have no inside information on this, but I believe the most likely explanation is, that the EU’s legal team tagged the provision into the draft, as any competent lawyer would have.
The political dimension of its (Art.16) function was not for them to decide.
That a (non-final) draft version of such a document goes into (wider) circulation, ending up in the press, is just clumsy, inept, [insert your own adjective here, depending on mood], way of doing business.
Whatever the truth of the matter is, I maintain that the UK’s response, and ugly political exploitation of the EU’s blunder has been an order of magnitude worse.
Of course it wasn’t random, and I didn’t claim it was.
I also have no inside information, but I expect someone was tasked with finding a way (a legal way, necessarily) of quickly stopping the export of COVID vaccines from the EU. Quite sensible, that person realised there was no way to stop export to Northern Ireland, and from there to the rest of the UK, which is outside the EU, and so sought to plug that gap.
And then desire for legal perfection collided with messy political reality.
So-called “final” drafts of EU measures are circulated for discussion all the time, and many are amended heavily before they come into law.
Was any formal step taken to put that draft regulation into law in the form that includes a reference to Article 16? Did anyone sign anything, or publish anything, or notify anyone?
I think we are in broad agreement – my only final point is that I cannot believe a thing lightly gets to be contained in any draft recital. It was not a drafting error – somebody made a decision of some kind, even if they were not authorised to do so.
I think we are in broad agreement – at the very least, someone was instructed to draft something or anticipated the need to do so, and that person (perhaps on instructions) added the Article 16 recital.
But I doubt UvdL herself told the lawyers or civil servants: “write me a regulation that invokes Article 16”.
The surprising thing to me was that the draft regulation got into public circulation without (it seems) someone sufficiently thinking through the political consequences. It was a bad misstep and quickly corrected.
But back to the point – Article 16 is not a weapon to be deployed, to blow the Protocol apart. Rather, it sets a process that can be follow to try to overcome difficulties and so make the Protocol work as best it can.
Invoking the Article 16 process is like “triggering” a meeting with your GP when you have a health niggle. Not like discharging a firearm or issuing a writ.
I’m genuinely convinced that the man is a fool, and given his time working in the EU, this surprises me.
But he really doesn’t seem to get this, does he?
Has Lord Frost identified any “serious economic, societal or environmental difficulties that are liable to persist, or diversion of trade”?
And notified the Joint Committee with all relevant information – including one assumes the nature of the actions he proposes to take, and how they will satisfy the tests of strict necessity and least disturbance to the functioning of the Protocol.
And then commenced negotiations and waited a month? Or alternatively identified “exceptional circumstances requiring immediate action”?
Until he does all of that, this is just sabre-rattling. Except article 16 is not a sabre. Not even an agreement to agree – it is an agreement to notify and consult.
There must be a real negotiation, he insists. Otherwise we’ll demand … further negotiation. Yeah, that’ll teach them.
Perhaps the EU will see the prospect of further negotiations with Lord Frost as some sort of threat. EU negotiators hate all that endless talking. After poking them with the soft cushions, no doubt they will cower in fear of the comfy chair!
I think that Frost may certainly have a case for diversion of trade. Businesses in NI have had problems importing from GB, and have naturally sought alternative suppliers from South of the border and further afield in the EU. Perhaps this was the cunning plan all along – any changes to GB to NI trade, which seem to be inevitable, would lead to diversion of trade and allow article 16 to be triggered to reduce or eliminate friction at the border. There would then be talks about how to alleviate the problem and an agreement may be reached, but a few months down the line, the whole process would repeat. Ad infinitum.
Even if Frost can take a ‘diversion of trade’ point, that only gets him to first base (so to speak). The other requirements of A16 still need to be met.
Article 16 mentions “serious … difficulties OR diversion of trade” (my emphasis) as enough to trigger unilateral action. Maybe I’m missing something blindingly obvious, but I can’t see why Frost would need to cite anything except diversion of trade. That “or” is a very powerful conjunction.
I aver it would need to be a ‘diversion of trade’ that was (a) serious and (b) affected the operation of the protocol such that a safeguarding measure was required and (c) capable of being addressed by a measure taken under A16.
Despite the disjunctive connective, it would not be enough to simply claim diversion of trade.
He would also need to particularise the alleged diversion of trade, giving all relevant information, and then explain what safeguarding measures are proposed, why they are strictly necessary (that is a high bar), and why those safeguarding measures cause least disturbance to the Protocol than any other possible measures.
And then wait at least a month for consultations to take place: for example the EU may well come back with suggestions that could modify the proposals to achieve a similar safeguarding effect with lesser impact, undermining a claim of strict necessity or least disturbance. Or he could claim (and would need to justify) exceptional circumstances requiring immediate action.
Once implemented he would need to keep the measures under review.
It is not a one way street – the EU may come back with some unexpected “proportionate rebalancing measures”.
In legal terms, Article 16 is a shield, not a sword.
All the bluster from Frost and his boss is total b……t! They never had any intention of sticking to the protocol – it was only a way to win an election. Now they think by rewriting history “it was that nasty EU that made us sign it” they think they’re going to wriggle out of it – the world is watching and there will b consequences.
Consider that the serious situation is that there are shortages in the shops, people fear for their right to live and work in their chosen country (both EU citizens in the UK and British citizens in the EU), and great costs and confusion has arisen over Brexit.
And then that there are simple measures which would completely remedy this situation, namely restoring the four freedoms, by rejoining the customs union etc.
And that these measures would very much cause the least disturbance, since they merely restore a well-tested, working situation.
Therefore, under Article 16, both the UK and EU should implement these measures, effectively making Brexit be in name only.
That must be what Lord Frost means, doesn’t it?
“And then that there are simple measures which would completely remedy this situation, namely restoring the four freedoms, by rejoining the customs union etc.”, you say.
You do not seem to realize that the UK is no longer an EU member State. It is in fact a “third country”, although someone might think it is heading to be a third-world country, politically speaking if not (yet) economically.
The “simple measures” you suggest to restore – after the hard Brexit imposed by your last three or four governments – are prerogatives of EU member Countries, so an entirely fresh access procedure would be required, subject of course to the EU’s approval – which is subject to the unanimous approval of the 27 present members. Wishful thinking at this stage.
Must we call Frost a lord? I suggest Knave frost of Brussels. After all, the europe issue made him.
“the europe issue”. Why, is Europe an issue? We Europeans in the EU think it is a resource.
Actually, I don’t know much of the NIP and so I won’t enter into a discussion on this protocol. Yet I feel that this one, as well as many others that have risen and will rise in future, is a root problem, an original sin: that of never having taken into account that a hard border would have to be established between Eire and the UK province of NI. Or rather, perhaps it was taken into account but that, in the mystical ecstasy of “get Brexit done”, someone, somewhere, somehow would solve the unsolvable.
It really boils down to difference between a vacuous politician and a Statesman.
Regarding your statement
“that of never having taken into account that a hard border would have to be established between Eire and the UK province of NI”.
Being from Ireland I have some knowledge on this.
The Good Friday Agreement (GFA) prevents a hard border to be established in Ireland (Eire is the name of the island not the Republic only). Unless you mean in The Irish Sea when you say between Eire & UK, But that would be Eire and GB
The deal made was that since their is already the GFA preventing a hard border on the island of Ireland, and The UK would not opt into the Single Market (SM), that border checks would have to be established in the Irish Sea, as in when boats land at Ireland or Great Britain, therefore Northern Ireland as a special case would be technically still in the EU.
It seems there was little motivation or enthusiasm for Unionists and Tories to enforce these customs checks, thus leaving the EU’s trade under threat from Northern Ireland being used as a back door for skirting EU regulations on products entering the EU. To try and force a better deal, Unionists and Tories are trying to scuttle the customs checks arrangement in the Irish Sea, but considering the majority of Northern Ireland (N.I.) voted to stay in the EU, the Unionists are now threatening to bring down the N.I. Assembly so Tories get full political power over Northern Ireland during this ‘Transition’.
Sorry, Phil, for not having thoroughly expressed my thought: I had taken for granted that I was speaking of Johnson’s hard Brexit and not Theresa May’s. Also, because I am aware that the GFA prevents a land border, I said “perhaps […] in the mystical ecstasy of “get Brexit done”, someone, somewhere, somehow would solve the unsolvable.”
Unsolvable because checks in the Irish sea or Irish/English ports are not viable because I suppose the EU would never devolve the controls to British/UK guards (as Juvenal wrote in his Satires, “quis custodiet ipsos custodes?”) and I cannot see EU officials checking goods and documents within the territory of a “third country”, GB or UK as the case may be. Thanks for explaining that Eire is the whole island and not the R.o.I as I thought.
Thank you for your comment.
Article 16, paragraph 2 contains the words “may take proportionate rebalancing measures as are strictly necessary to remedy the imbalance”. Surely that could only mean for a loss incurred (?) Would the EU not have show precisely what loss they are suffering in order to determine any proportionate rebalancing measure? Given that, if anything, it’s NI and the rest of the UK that have suffered a diversion of trade.. I can’t see that working out for them.
Any rebalancing measures would be intended to remedy an imbalance between the rights and obligations under this Protocol, not necessarily to deal with a loss.
Just like a safeguard measure under paragraph 1, they should be “strictly necessary” to address the identified problem, and “least disturb the functioning of this Protocol”.
To pick an example, the UK might say “we have no intention of implementing the agreement regarding documenting and checking sausages moved between GB and NI because it would be too disruptive to the position of NI in the UK” and the EU might say back “well, we can’t risk undocumented and unchecked sausages leaking into the EU from NI as a result of the UK’s failure to implement the agreement, so we will need to check all emulsified high-fat offal tubes coming south from NI”.
Your example is to suggest that the EU, in retaliation to the UK taking “safeguard measures” to ensure there is no longer a diversion of trade (as specifically provided for by the protocol), will create a customs border on Éire, breaking the terms of the Good Friday agreement??
I didn’t mention retaliation, or a customs border.
I was simply illustrating that, if the UK implements safeguarding measures, then the EU could react by rebalancing in some other way. As specifically provided for by the Protocol.
If your example wasn’t meant to suggest some sort of customs border just how do you imagine the EU are going to “check all emulsified high-fat offal tubes coming south from NI? This is the point I was making.. it’s all very well casually saying the EU could react by rebalancing in some other way.. until you actually start having to define exactly what that might entail.
If you can tell me what safeguard measures the UK is thinking of implementing, perhaps we might be able to identify some imbalances that those measures might create in the rights and obligations under the Protocol, and that might trigger thoughts as to any rebalancing measures that might become necessary to remedy the imbalances.
To extend the example, perhaps the EU might require all sausages to be labelled with details of their origin, and then require EU retailers to check and self-certify ones originating from the GB. Perhaps they might conduct spot checks at distribution centres. Or something else.
But I am just speculating. I expect some EU people are giving some serious thought to what the UK might do, and how the EU could react.
But, logically, for there to be a customs border between Dover and Calais, there needs to something with equivalent effect somewhere on the route from the GB mainland to NI to Ireland to the rest of the EU. That does not necessarily mean border infrastructure.
I expect the EU will indeed be giving serious thought to how they might react.. especially since the leverage they previously imagined they had simply doesn’t exist anymore.. pretty much nobody is expecting a US/UK trade deal any time in the next few years and the City of London has pretty much moved on from hopes of “equivalence” being granted.
Interesting discussion, but surely the EU would be more sensible in taking calibrated action outside of the TCA rather then engaging in Article 16 imbalance remediation – e.g. not allowing participation in Horizon.