An introduction to Article 16 of the Northern Irish Protocol

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16 in respect of proposed regulations about the coronavirus regulations – a proposal that was promptly, and correctly, withdrawn.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.

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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.

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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:

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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:

And:

Note the word ‘guarantee’.

And:

And:

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.

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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.

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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.

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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.

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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.

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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.

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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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11 thoughts on “An introduction to Article 16 of the Northern Irish Protocol”

  1. “diversion of trade” seems a remarkably low hurdle – especially as it does not appear to be subject to the need to be “serious” or “liable to persist”.

    Any of the current difficulties, such as movement of plants, will cause “diversion of trade”. Can this be used as justification to start the process in Annex 7 or am I missing something?

    1. I agree. After all the drafting of the other parts, this first paragraph seems loose and dare I say confusing.

    2. There is no problem with moving the plants Mainland/NI, the issue is with moving the mainland soil into the EU, NI has plenty of soil so for plant transfer perhaps UK needs to look at new technology Johnson talks a lot about that.
      Small UK businesses need some support getting at the Brexit dividend. If plants can be exported to NI, the same approach would allow UK plantsmen to export to the whole EU.

  2. I struggle to understand the language around the EU’s planned invocation of article 16: David writes of a ‘horrible mistake’ others have used similar language. I understand that it was politician ill advised but it was within the protocol and not far from its intended purpose. The UK had for months proposed to break the protocol ‘in a limited way’ and the language around that seemed to be much less agitated.

    1. As I understand it, the decision to invoke Article 16 was made on technical grounds, because someone pointed out that a policy of controlling exports of vaccines from the EU cannot work at the Irish border if the protocol requires that there are no controls at the border. So there was a concern that vaccines could “leak” from the south to the north.

      It seems that the regulation drafter here only considered the technical “what if” aspects, and did not recognise quite how incendiary and politically disadvantageous this technical measure would be, or consider what consultation or notice would be required in procedural terms to invoke Article 16, or indeed whether in reality there would be diversion of vaccines out of the EU via Ireland.

      As I recall, the draft regulation that referred to Article 16 was meant to be signed “for the Commission” by its president. I wonder when she saw it. Once the implications became clear, it was withdrawn double quick.

      1. Exactly. But ever since this has been treated as the gravest transgression possible, not only by the UK government (hardly surprising, they treat everything like a speaker in a debating society) but also by the anti Brexit crowd. It seems to be a much bigger misstep than threatening to break the protocol for weeks as the UK government did and I find it hard to understand this.

        1. Reading Article 16 it appears it is there to protect businesses and consumers in Northern Ireland (and Ireland) should there be any adverse impact as a result of the Protocol.

          Don’t think the intention was to use it as a crude weapon to punish the United Kingdom in some manufactured bun fight about vaccine!

          1. Must have missed the ‘UK use only’ part of Article 16. Keeping a manufacturer from continuing to deliver a vital good (vaccines) to the UK while it is claiming that it cannot fulfil a best effort clause to the EU seems to be a valid reason to me. What was wrong about threatening to use Article 16 in my opinion is that there are other, politically less disruptive means to achieve the same purpose, namely requiring vaccine manufactures to register all exports (Which the EU ultimately did, admittedly much later than the UK but they are learning)

            Next time I guess, following your advice, it would be better if UvdL announces a ‘limited breach of international law’ instead of invoking Article 16.

  3. “If application of this protocol leads to…..”

    This excludes lots of trickery.

    Because of the UK government, for example, plays fast and loose with implementation (as some EU leaks currently imply), then article 16 isn’t available.

    “If application of this protocol….”

    First, the offended side must show that he did his part in implementing the protocol. Only then he can argue that the disruption is a result of the protocol. Rather than his lack of implementing the protocol

  4. Hasn’t Northern Ireland become, in effect, a condominium of the Republic of Ireland, the UK, and the EU? If so, Article 16 is not an attempt to square a circle, but an attempt to turn a ball into a box. I am being mindful when I underline my understanding as I note the inherent contradiction of the relationship between NI and the EU, UK. And never forget the US is also a guarantor of the Good Friday Agreement. In a sense, this is an impossible situation. Can it last? Only if Oscar Hammerstein II was right that impossible things keep happening every day.

  5. Did you have an opportunity to examine Article 18 and the apparent inconsistency with the Northern Ireland Assembly Standing Orders on Cross Community Consent and governments unilateral decision to amend same?

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