All of a sudden, triggering Article 16 of NI Protocol doesn’t seem such a bad idea after all

Sam McBride

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July 24 2022 12:43 PM

For months, British threats to trigger Article 16 of the Northern Ireland Protocol had appeared feeble. What started as chest-beating by Boris Johnson, David Frost and then Liz Truss became limply performative as they kept warning darkly of their willingness to disapply swathes of the Irish Sea border — but did nothing.

When Truss eventually turned her words into actions by publishing legislation last month, it went much further, bypassing the temporary and limited provisions of Article 16 and instead effectively promising to ditch much of the deal. While that has enraged many, it has also revealed how Machiavellian methods can work — after a fashion.

Last week, MPs passed the bill over to the House of Lords, having rushed it through second reading, committee stage and third reading in just over three weeks. There has been scant serious opposition in the Commons, with pro-EU MPs appearing to tactically bide their time in the expectation the Lords will reject the bill outright and a new prime minister may adopt a different course.

Peers will at the very least heavily amend the bill; that is likely to involve months of delay for the legislation. But the change in prime minister may increase rather than diminish the bill’s chances of making it into law.

Truss, who has championed the legislation even when Johnson appeared uneasy at its sweeping scale, is now favourite to succeed him in No 10. While the Foreign Secretary has trumpeted this bill during her leadership campaign, she could, as Johnson did, discard such promises once in power. But doing so would involve more risks than then — she has neither the Johnsonian bluster nor celebrity. Just because he defied the rules of politics doesn’t mean she can.

The DUP will be desperately hoping Truss not only wins, but also delivers the emasculation of the protocol. However, regardless of how this ends, the mere presence of such an unconventional — and its opponents say, dishonourable — bill is shaping a new consensus.

As soon as the bill was published, the EU responded by widening proposals for softening the protocol’s impact. That was rejected as inadequate by London, by unionism and even by some pro-protocol businesses, but the EU move was an offer to negotiate for more and was obviously a response to the bill.

The EU did not want to seem to respond to pressure, yet clearly it did. It had done so before. After refusing to accept the implications of unionist opposition to the protocol last year, the EU then made a series of compromise proposals after Johnson implemented unilateral grace periods to indefinitely delay much of the protocol’s implementation and after he warned that the conditions for triggering Article 16 were met.

Those conditions were drawn surprisingly broadly. Article 16 states that “safeguard measures” can be taken if the application of the protocol “leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”. While the collapse of devolution due to the DUP’s opposition to the protocol is arguably a serious societal difficulty, what is unquestionable is that there has been a diversion of trade.

It was also going to damage relations with Brussels, Dublin and Washington, DC

Putting a border in the Irish Sea was always going to mean trade rerouting — less Britain-NI and more ROI-NI — and this was well understood by those who drafted the protocol. Why, especially when dealing with as slippery an interlocutor as Johnson, the EU agreed to such a low bar for triggering Article 16 remains a mystery.

Nevertheless, using that route was always more about politics than law. That article makes clear that if it is deployed then the other side can take retaliatory measures. It was also going to damage relations with Brussels, Dublin and Washington, DC.

For most of the last 18 months, pro-EU MPs — and even some Brexiters — have strongly opposed using Article 16. Suddenly, the emergence of Truss’s bill has shifted the parameters of a resolution to the protocol problem which is acceptable to the vast majority of MPs; what previously was unthinkable now seems moderate and restrained when compared to this bill.

Last December, senior Labour backbencher Hilary Benn referred to “the very serious consequences” of using Article 16. Now Benn says the bill is unacceptable because it is being pursued “when they have a means of taking the problem to the EU in the form of Article 16”.

Ten months ago, Labour’s shadow attorney general, Emily Thornberry, said it would be “profoundly tragic” if Article 16 were deployed and Labour’s then shadow Northern Ireland secretary, Louise Haigh, warned that doing so would unleash “poisonous instability”. Now her successor, Peter Kyle, is presenting Article 16 as a route “within the law” which could be taken.

The pro-EU Tory Bob Neill told the Commons it would “not be unreasonable” for ministers to make the case to the legislature “in relation to the specific items where they seek to disapply an international treaty”. He said if this couldn’t be done then “I suggest it would be prudent at the very least to invoke the Article 16 safeguard provisions”.

Former attorney general Geoffrey Cox, a moderate Brexiter who opposes the bill, responded to DUP leader Jeffrey Donaldson’s complaints about the protocol’s impact by telling the Commons: “What he is saying is a very good case for triggering Article 16… it is not necessarily a good reason, however, for changing the entire basis of the treaty.”

It is still unlikely this bill leads to the Irish Sea border being dismantled as unionists would like. If that were to happen, unionism still does not know what counter-reaction such victory would trigger; unionist leaders have for years managed to gauchely turn even their triumphs into disasters.

But, for now, most unionists will be feeling relief bordering on disbelief; the fragile new consensus is far closer to their position than they could have hoped for even months ago.