16th February 2021
Article 16 of the Protocol on Ireland/Northern Ireland seems to be fated to become one of those legal provisions known by their number alone, like Article 50 or Section 28.
The provision has already been the feature of a political controversy, when the European Commission made the horrible mistake of invoking Article 16 in respect of proposed regulations about the coronavirus regulations – a proposal that was promptly, and correctly, withdrawn.
The prime minister of the United Kingdom Boris Johnson has also been reported as saying that he would be minded to trigger Article 16 in certain circumstances.
In these circumstances, a working knowledge of what Article 16 says, and does not say, may be useful for those who follow public affairs.
This post provides a basic introduction to the provision, and it complements a video that I recently narrated for the Financial Times.
As a preliminary point, just as one does not simply walk into Mordor, one should never go straight to a clause or other provision within a wider legal instrument without an understanding of the purpose of that wider legal instrument.
By analogy: one can perhaps make sense of a line of computer code, but one also needs to understand how that line of code fits in the wider program to elicit its full meaning.
Similarly, an undue focus on the wording and contents of a single provision in any legal instrument can be misleading.
Every article, clause, section – or whatever word used for a discrete portion of legal text – has a context.
And so with Article 16 we have to understand something about the purpose of the Protocol on Ireland/Northern Ireland.
The protocol, in turn, does not exist in isolation.
The protocol is attached to the Brexit withdrawal agreement – one of the two vast and complex international agreements between the European Union and the United Kingdom that provide the legal framework for Brexit.
The recitals to the withdrawal agreement – which (literally) recite the background and shared understandings of the parties to that agreement – describe the purpose of the the protocol:
Not just specific, but ‘very specific’.
You will also note the word ‘durable’ – and this indicates that it was the shared understanding of the European Union and the United Kingdom that the protocol would not be a temporary arrangements.
Article 125 of the withdrawal agreement then provides for how and when the protocol takes effect:
You will see Article 16 is not included in the provisions that had immediate effect on the departure of the United Kingdom from the European Union – and so Article 16 has only had legal force since 1 January 2021.
The other main mention of the protocol in the main withdrawal agreement is that there shall be a specialised committee dealing with the protocol as part of the ‘Joint Committee’ that oversees the agreement:
Now we can turn to the protocol itself.
Confusingly – and welcome to European Union legal instruments! – the protocol itself has its own recitals and articles.
And the protocol has a lot of recitals – twenty-three recitals (as opposed to nineteen operative articles).
Each one of these recitals sets out expressly a shared understanding of the European Union and the United Kingdom.
In particular, the government of the United Kingdom has put its name to each one of the recitals as a statement of its own understanding.
The recitals are not agreements in themselves, and they are not legally enforceable by themselves, but they do set out the common understandings of the European Union and the United Kingdom that are relevant to the articles that follow.
And these recitals, in particular, are significant:
Note the word ‘guarantee’.
A common response from those unhappy with the protocol is to insist something about what the Good Friday Agreement does and does not provide in respect of a ‘hard’ border.
These recitals, however, do explicitly set in firm and emphatic language the shared understandings of the European Union (including Ireland) and the United Kingdom in respect of there not being a hard border.
And this is in the very ‘oven-ready’ withdrawal agreement for which Johnson and the Conservative Party won a mandate at the December 2019 general election and that was then endorsed by the Westminster parliament.
Now the articles – the substantive operative provisions that are entitled to have legal effect as between the parties.
You will see that the articles provide for substantive obligations in respect of the free movement of persons and goods (and Article 5 in turn incorporates an annex listing hundreds of European Union regulations and directives).
There are also provisions for State aid and VAT.
The protocol is, in effect, the legal mechanics for Northern Ireland remaining, in effect, part of the European Union single market and customs arrangements whilst still being part of the United Kingdom single market.
It is a complex and – regardless of one’s political views – remarkable piece of legal drafting, especially given the rush of the exit negotiations.
But as with any legal instrument – especially ones devised at speed and in respect of sensitive issues – there will be problems and disputes and unintended effects.
And this brings us to Article 16.
Article 16 comprises just three paragraphs:
The article is entitled ‘Safeguards’ – and not, for example, ‘Sanctions’ or ‘Retaliatory measures’.
The first paragraph then provides the triggers for the safeguards.
There are two triggers.
First: ‘if the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist’.
Here note the requirements that the difficulties need to be ‘serious’ and ‘liable to persist’ – that it, not trivial or temporary.
Second: ‘if the application of this Protocol leads to…diversion of trade’.
Again, ‘diversion’ indicates something significant and lasting.
If either of these triggers are met then either the European Union or the United Kingdom ‘may unilaterally take appropriate safeguard measures’.
Note the requirement that the measures be ‘appropriate’ – and also (deftly) the measures have to be ‘safeguard’ measures, and not any old measures.
Paragraph 1 of the article then also adds further requirements in respect of the scope and duration of the safeguard measures, and subjects the measures to a test of strict necessity.
And – and! – priority should be given to ‘such measures as will least disturb the functioning’ of the protocol.
Paragraph 2 of the article then provides for similar tests for any ‘balancing’ measures of the other party.
These are all onerous substantive tests – and each one must be met for a safeguard measure to be adopted.
And these are just the substantive tests – for Annex 7 to the protocol also provides for the procedure that also has to be followed.
Annex 7 contains six ‘points’:
You will see point 1 provides a duty of notification at the stage the safeguard measure is being considered.
Point 2 then provides that the next stage is consultations.
Point 3 then imposes a general one month delay, unless the consultations have ended quickly or there are ‘exceptional circumstances’ and the measures are ‘strictly necessary’.
Point 5 then provides that, in addition to the requirement that the safeguard measures not endure longer than necessary, there is a three month review period.
All of these substantive and procedural provisions are consistent with the measures being of the nature as described on the tin: ‘safeguard measures’.
The measures are to be protective – and what is to be protected is the operation of the protocol and the shared understandings on which the protocol rests.
This means any attempt to use the safeguard measures to, say, alter the operation of the protocol, or to disturb the shared understandings on which the protocol rests, is outside the purpose of the safeguard measures.
In simple terms: that is not what the safeguard measures are safeguarding.
Of course, politicians being politicians, there will be a temptation to use the Article 16 safeguard measures for other purposes – as leverage in trade discussions, or as retaliatory weapons, or as an attempt to re-write or even discard the protocol.
But even if the intention is to misuse the safeguard measures, the measures are – at least in theory – subject always to the substantive requirements of Article 16 and the procedural requirements of Annex 7.
Of course: all legal instruments are only ever as powerful as the human will to enforce their terms.
For Quis custodiet ipsos custodes? – the eternal question of who watches the watchmen – applies here, as elsewhere.
What – or who – shall safeguard the safeguards?
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