Getting to grips with . . .

Northern Ireland Protocol: will the UK trigger Article 16?

Brexit deal fallout risks ‘being felt in the fabric of our union’, warns Frost

The UK government stopped short of threatening to pull out of parts of the Northern Ireland Protocol today as it called for “significant changes” to post-Brexit trading arrangements – but the option has not been ruled out.

“We cannot go on as we are,” Brexit Minister David Frost told the House of Lords. More than 200 suppliers are no longer selling to Northern Ireland, with difficulties for the movement of chilled meats, medicines, pets and plants, among others, he said.

What is the problem?

The protocol, which has effectively created a checks border in the Irish Sea to avoid a land border on the island of Ireland, “isn’t working out” as expected, Frost wrote in The Irish Times earlier this month, in an article penned with Northern Ireland Secretary Brandon Lewis.

They claimed that the underlying problem was the EU’s “inflexible requirement to treat the movement of goods into Northern Ireland as if they were crossing an EU external frontier, with the full panoply of checks and controls”.

Marks & Spencer chairman Archie Norman warned today that this will mean “gaps on the shelves” due to the “Byzantine and pointless and honestly pettifogging” enforcement of the rules.

He told BBC Radio 4’s Today programme that around 20% of M&S products were not arriving in Ireland at all. Trucks had been turned away due to the wrong colour of typeface used on documents and a simple sandwich can require three veterinarian certificates to get through the border, he said. Often delivery trucks are delayed for so long that most of their fresh contents have to be destroyed.

As well as the logistical trade difficulties, Unionist leaders also fear the protocol threatens Northern Ireland’s place in the UK and have “linked tensions over it to rioting that erupted in Belfast during spring”, says the BBC.

The fallout risks “being felt in the fabric of our union”, said Frost today. “All dimensions of the Belfast/Good Friday Agreement need to be respected – that is, Northern Ireland’s integral place in our United Kingdom just as much as the North-South dimension of the agreement.”

What is the UK proposing instead?

Ministers want what has been described as an “honesty box” approach, where companies are trusted to send over goods destined only for sale and use in Northern Ireland without checks. They also want products, such as medicines, that are approved in the UK but not in the EU to be available north of the border.

Another issue is who acts as the ultimate arbiter on any protocol disputes. The UK has called for an independent panel to take over from the European Court of Justice to offer more balance in rulings.

How is the EU expected to react?

“The new UK position is likely to infuriate Brussels,” says the Financial Times.

So far EU leaders “have urged Johnson to abide by the protocol or sign up to compromises that would mean a degree of alignment with the EU rulebook for the whole UK,” says The Guardian. And the bloc is unlikely to accept the new “honesty box” proposals given its “recent protestations that the UK has eroded trust by taking unilateral decisions on the protocol”.

Ireland’s Europe minister Thomas Byrne has already said today “there can be no renegotiation of the protocol”, although he said the Irish government is willing to “discuss any creative solutions” within the confines of the deal.

Earlier this month, his colleague, Irish foreign minister Simon Coveney, said Downing Street needed to take “ownership” of the post-Brexit trade deal that it negotiated and agreed upon last year, telling RTE that “the only side that has shown flexibility” this year “has been the EU”.

So will the UK trigger Article 16?

Today’s proposals “amounted to a major challenge to the EU”, but “it fell short of calls to rip up the Protocol or to trigger Article 16, a process which would see the UK unilaterally ignoring promises made in the agreement”, says The Telegraph.

But, The Times notes, that Frost “did not rule out using the mechanism if needed”.

Frost said it was “plainly clear that the circumstances exist to justify the use of Article 16”, which states that either side can take action if the protocol’s application gives rise to “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”.

“Nevertheless, we have concluded that this is not the right moment to do so,” said the minister.

When might that moment come? The BBC’s Chris Morris points out that checks are “due to intensify” at the end of September, when a series of grace periods from the EU run out.

“If the UK were to walk away from the protocol, the EU could suspend parts of the (separate) EU-UK trade deal which was agreed at the end of last year,” adds Morris. “In other words, it could prompt a much wider trade dispute. And the politics would be poisonous.”

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