Q&A: What is Article 16 and what could happen if UK triggers it?

Ireland and the EU expects the UK to trigger Article 16 of the Northern Ireland protocol in the coming weeks. This unilateral action would effectively suspend the operation of the protocol and have far-reaching consequences for EU-UK relations.

So what is Article 16?

Article 16 is part of the Northern Ireland protocol, the section of the Brexit withdrawal agreement which deals with the North.

The protocol avoided a hard border on the island of Ireland by placing a customs and regulatory border in the Irish Sea, which means additional paperwork and physical checks on some goods coming from Great Britain to Northern Ireland.

A small number of items can no longer be imported to Northern Ireland from GB, and some suppliers in Britain have stopped selling to the North.

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Unionists and loyalists are opposed to the protocol, which they claim has changed Northern Ireland’s constitutional status as part of the UK, and has caused trading difficulties, and there have been repeated calls for Article 16 to be triggered to address these issues.

In September the four largest unionist parties issued a joint declaration reaffirming their opposition to the protocol and their “unalterable position that the protocol must be rejected and replaced.”

What does Article 16 say?

Article 16 is the protocol’s emergency cord. If the application of the protocol leads to “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”, under Article 16 either the UK or the EU “may unilaterally take appropriate safeguard measures.”

It stipulates that these measures “shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation”, with the other party entitled - if the safeguarding measure employed creates an “imbalance between the rights and obligations” under the protocol - to take “such proportionate rebalancing measures as are strictly necessary” to remedy the situation.

The UK government has already said - in its Command Paper in July - that it is “clear the circumstances exist to justify using Article 16” as there has been “significant” disruption to trade between GB and NI as well as political and community instability.

What happens if it is triggered?

Initially, more talking. Annex seven - which outlines how Article 16 will operate - states that where either the EU or the UK is considering taking safeguarding measures it shall notify the other “without delay”, providing all relevant information, and shall “immediately enter into consultations in the Joint Committee with a view to finding a commonly acceptable solution.”

Neither party may take safeguarding measures until “one month has elapsed after the date of notification.”

However, there is a caveat in the case of “exceptional circumstances requiring immediate action”, in which case the “protective measures strictly necessary to remedy the situation” may be applied “forthwith”.

Given that the UK government has maintained the conditions for triggering Article 16 have existed for some months, it would be difficult to justify need for immediate action; that said, it has already demonstrated its willingness to take unilateral action in regard to Brexit, so this cannot be ruled out.

What will happen in that scenario?

Practically, little is likely to change in the short term. Earlier unilateral action by the UK government to extend some grace periods indefinitely means the scope for change on the ground in Northern Ireland is limited.

The speculation is that the UK may use the triggering of Article 16 to go further and to force other changes, which could spiral into a trade war and the collapse of the Brexit trade agreement.

"One is contingent on the other. So that if one [THE PROTOCOL]is being set aside, there is a danger that the other will also be set aside by the EU," Minister for Foreign Affairs Simon Coveney said on Sunday.

Inevitably, it will worsen the already strained relations between Dublin and Brussels on the one hand and London on the other, and will be seen as further evidence of "bad faith", as Mr Coveney put it, on the part of the UK government.

Strained relations - and indeed heightened tensions - over Brexit are nothing new in the North; it will be seen as a short term win for opponents of the protocol, who have seen their demand to trigger Article 16 delivered upon, but in the medium to longer term it is hard to see how it will do anything to calm already troubled waters.

Aodhán Connolly, the director of the Northern Ireland Retail Consortium, summed up the potential impact for businesses; he could easily be speaking for society at large.

“What article 16 does it the opposite of what business needs. Business needs stability, business needs certainty, what triggering Article 16 does is give us not only more uncertainty, not only more instability, but long protracted negotiations again.”