Brexit: Why is UK at odds with EU over Article 16 and Northern Ireland Protocol?

The UK again finds itself in a tense standoff with the EU after Boris Johnson’s government hinted it could trigger Article 16 and suspend parts of the Brexit agreement’s Northern Ireland Protocol.

Britain’s negotiator Lord David Frost emerged from a meeting with European Commission vice president Maros Sefcovic in Brussels on Friday saying advances towards new trading rules for Northern Ireland had been “limited”.

He suggested that a drastic move to scrap the protocol, agreed in 2019 by Mr Johnson and Lord Frost to ease the passage of goods between Northern Ireland and the Republic of Ireland without the creation of a hard border, was “very much on the table and has been since July”.

He added that “significant gaps” remained between the two sides and warned that “time is running out on these talks if we are to make progress”.

The protocol relaxes customs checks between the UK and EU nations in the interest of preserving the peace secured by the 1998 Good Friday Agreement, after decades of sectarian violence during the Troubles, but its conditions mean Northern Ireland must comply with the rules of the European single market, meaning bureaucracy and possible delays on goods arriving from England, Scotland and Wales.

That is a reality Westminster is keen to sidestep, hence its suggestion of a “new legal text” to replace the current deal and streamline the process.

Article 16 meanwhile permits either the UK or the EU to unilaterally suspend elements of the protocol if it is shown to be causing serious “economic, societal or environmental difficulties” and resulting in trade disruption.

While the two sides did agree to a reduction in paperwork at the border in mid-October, the European Court of Justice’s continuing oversight role remains a point of contention, with the British government keen to remove it, complaining that the Luxembourg court’s influence amounts to an unjustified infringement of UK sovereignty.

For his part, Mr Sefcovic says the UK has failed to engage with significant proposals put forward by the EU to make life easier for businesses moving goods between Northern Ireland and the British mainland.

He insisted the EU had “spared no effort” in drawing up its package to cut back customs-related red tape and do away with 80 per cent of sanitary checks on animal products.

“This was a big move by us but until today we have seen no move at all from the UK side,” he said.

“I find this disappointing and, once again, I urge the UK government to engage with us sincerely.

“From this perspective I see next week as an important one. We should focus all efforts on reaching a solution as soon as possible. Our aim should be to establish stability and predictability for Northern Ireland.”

On the question of Article 16 specifically, Mr Sefcovic was bullish, saying triggering it “would have serious consequences – serious for Northern Ireland as it would lead to instability and unpredictability, and serious also for EU-UK relations in general as it would mean a rejection of EU efforts to find a consensual solution to the implementation of the protocol”.

While Britain’s Northern Ireland secretary, Brandon Lewis, insisted that the triggering of Article 16 was “not inevitable” and remained an “absolute last resort”, the row escalated on Sunday when Irish foreign minister Simon Coveney told RTE that the Trade and Cooperation Agreement signed by the UK and EU under the Withdrawal Agreement was itself “contingent” on the Northern Ireland Protocol – and therefore in jeopardy.

“One is contingent on the other. So if one is being set aside, there is a danger that the other will also be set aside by the EU,” he said.

Belgium’s deputy prime minister, Vincent Van Peteghem, drew similar conclusions in conversation with Bloomberg TV over the weekend.

If the UK does trigger Article 16, the “serious” EU response alluded to would effectively plunge Britain back into no-deal Brexit territory, which would mean new tariffs for its businesses and even worse terms than they currently operate under now outside the single market.

Also hugely critical of Mr Johnson’s government for flirting with tearing up the Northern Ireland Protocol was Sir John Major, his predecessor as Conservative prime minister between 1990 and 1997, who said going through with it would be “colosally stupid” during a lengthy interview on BBC Radio 4’s Today progamme on Saturday morning in which he also condemned the ongoing “Tory sleaze” row currently engulfing the party.

“This protocol is being denounced week after week by Lord Frost and the prime minister,” Sir John said. “Who negotiated the wretched protocol? Lord Frost and the prime minister. They negotiated it, they signed it, they now wish to break it.

“At the moment, we are negotiating over the protocol with all the subtlety of a brick,” he added.

“What is happening week after week is that Lord Frost goes into the negotiations, he gives away nothing, he takes something from the European Union, he goes away, blames them for the fact that nothing at all has happened.

“This is a very difficult and dangerous road to go down. It’s not just a question of trade difficulties. It could, we’ve seen what’s happened in Northern Ireland before, it could become much worse. They should be very, very careful about this.

“This is silly politics to placate a few extreme Brexiteers, and the price will be paid by businesses, people in Northern Ireland and the reputation of the United Kingdom.”

Opposition leader Sir Keir Starmer was likewise scathing, telling the BBC’s Andrew Marr on Sunday that Mr Johnson was “constantly trying to pick a fight on things like this so he hopes people don’t look elsewhere in the forest, which are things like the Owen Paterson affair”.

The Labour leader also stated his objection to interfering with the protocol, saying: “That isn’t in the interests of the communities in Northern Ireland or businesses in Northern Ireland. What is in their interests is resolving the issues.”

Speculation nevertheless remains rife that Mr Johnson intends to press ahead with Article 16 following the conclusion of this week’s Cop26 climate summit in Glasgow, Scotland, when the eyes of the world are no longer trained on Britain.