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Article 16 of the Northern Irish Protocol, which ostensibly enables either side to take “safeguarding measures” pending a ruling from an independent tribunal, is a legal minefield which could cause political and economic chaos. Even former No.10 adviser Dominic Cummings, who is partly responsible for the UK signing it in the first place, has said triggering it could be a “debacle”.
The decision whether to do so will be taken in coming weeks. We should hope wise counsels prevail and Boris Johnson decides not to trigger it. Following meetings in London last week, more positive noises are coming from both Lord Frost, the UK negotiator, and his EU counterpart, Maroš Šefčovič.
Lord Frost, (who is far more sensible than his detractors in the press realise), is within his rights to threaten it in order to improve the operation of the Northern Irish Protocol. So far, that strategy has paid some dividends, with the EU coming forward with proposed changes to the operation of the agreement last month.
What triggering means in practice
In order to avoid a border on the island of Ireland – the boundary of the EU single market – the Northern Irish Protocol has imposed customs checks between mainland Great Britain and Northern Ireland, which the EU has interpreted strictly, alarming Unionist opinion in the province, which feels it has been artificially hived off from the rest of the United Kingdom.
The UK Government can trigger Article 16 unilaterally in writing if it believes there are “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade” arising from the Protocol. The Government said such a threshold had been reached in its Command Paper in July.
Following the trigger letter, there would then be one month’s negotiation between Ministers on the Joint Committee which governs the Agreement, before the safeguarding measures – in this case, presumably London suspending checks between GB and NI – were implemented. An arbitration tribunal, with one member appointed by each side and an independent chair, would then rule over the next nine months.
But hold your horses. Things are not so simple. The EU can introduce “rebalancing measures” of its own which might include, for example, suspending data sharing. And if the UK fails to implement the tribunal ruling, the EU can introduce retaliation measures. The EU can further exit or suspend the entire Trade and Co-operation Treaty with 12 months notice, which is anyway due for review in 2024. In other words, triggering Article 16 could itself lead to a great unravelling of the Brexit treaty. It is fraught with the danger of unexpected consequences.
The tribunal can also force legal disclosures under Article 751 of the Agreement. If it can be proven that the UK signed the Protocol fully intending to “ditch bits which we didn’t like after whacking Corbyn” as Dominic Cummings has claimed, then the UK’s good faith would be called publicly into question.
The tribunal may also refer to the European Court of Justice on matters of EU law. Finally, it might rule against the UK, leaving us at the mercy of further countermeasures.
The House of Lords might block the measure
Then there is the Parliamentary process to consider. Lord Frost has confirmed that implementing a trigger of Article 16 would require a Statutory Instrument to be passed by both houses. The Government has a Commons majority of 76, which fell to low 20s in the Paterson votes. Many Conservative MPs might ask, “Hang on, I thought Brexit was done and we are supposed to be levelling up? Isn’t this going to all go wrong again?”
It is not impossible that the House of Lords – where the Government does not have a majority – would be emboldened by a close vote in the Commons, defy convention and reject the measure. At the very least the Lords could demand an Impact Statement which would lay out the economic consequences on supply chains and for investors.
If, and it is a big if, the Lords rejected the Instrument, there would be a huge controversy unseen since 1968, when it rejected an instrument from the Wilson Government imposing sanctions on Rhodesia for declaring unilateral independence. On that occasion, the Government relaid the instrument and it was passed, partly due to the international outcry from the United Nations and United States.
This time, 50 years later, how would the Americans and the UN react to the allegations that the UK has either acted in bad faith or contrary to the spirit of the Good Friday Agreement? It may not matter whether those allegations are true or not, merely that the accusation can be made and picked up by Democrats in Congress and by President Biden, who has already said as much.
There would be a knock-on impact on investor confidence in the UK, which has been fragile since 2016. The FTSE 100 has already been left trailing as other markets recover from Covid.
Stormont politics
However, let us assume that the legislation did pass in Parliament. There would be a further hurdle: Irish politics, including in the Stormont assembly. A cross-border alliance-of-convenience could be formed by Sinn Fein, whose vice president Michelle O’Neill is deputy first minister in Northern Ireland, with Fine Gael and Fianna Fáil in the Republic. To this may be added the softer edges of Unionism, professionals and business people, who never supported Brexit in the first place, precisely because they feared that a border would have to go somewhere, either in Ireland or in the Irish Sea.
The Stormont assembly could hold that the “safeguard” and “rebalancing” measures of both sides collectively amount to a change to the status of Northern Ireland, which under Section One of the Good Friday Agreement, would require the democratic consent of a majority, i.e., a vote in Stormont. The next election for the Northern Irish Assembly is in May, and in the meantime the Democratic Unionist Party is only the largest party by one seat. It performed badly in the 2019 General Election, and it has been losing support to the Alliance Party and a revived Ulster Unionist Party.
Boris in trouble, again
No wonder it has been reported that the Cabinet Office has sought advice from a second team of lawyers as to the legal ramifications of Article 16.
All of the legal and procedural objections could perhaps be overcome if the British Government was on strong political foundations at home. But following the Owen Paterson affair, Boris Johnson’s administration is plainly weaker than it was and in trouble with its own benches in the Commons. It can be of little comfort that the voices calling for the triggering of Article 16 are the exact same ones who proclaimed that overturning the Standards Committee’s judgement against Mr Paterson would be a good idea and simple to execute.
Next month, on December 2nd, the Bexley by-election takes place following the death of James Brokenshire. This is the first in a series of three by-elections. There may be more, for example in Leicester East, where the ex-Labour MP Claudia Webbe has been convicted of a criminal offence of harassment, and in Torrington, where Sir Geoffrey Cox is under siege from the media over conducting his legal work in the Caribbean during lockdown. By-elections worry MPs at the best of times.
Don’t do it
Put all this together and the risk is that Article 16 could prove to be a fiasco, an economic and legal torture chamber which fatally hands the initiative to the other side and leaves the UK fundamentally weakened. Boris Johnson would be well advised to think twice about triggering it, which is why I think he will not do so. It therefore follows that he will be seen as having bluffed, won some concessions, and backed down, but that is the least bad option.
George Trefgarne is CEO and founder of Boscobel, an independent strategic communications firm, providing clients with bespoke financial PR & public affairs advice.
