One would think, from the way that Article 16 is sometimes discussed, that it is either an off-the-shelf cure-all for the problems arising for the United Kingdom from the operation of the Northern Irish Protocol or a latent assault on international law.
It is neither. Having been negotiated by both parties and included in the text of the treaty, its activation obviously cannot breach that same treaty. It also only part-suspends the Protocol and offers no unilateral path to scrapping it altogether.
Nonetheless, the Government triggering it would be a Big Deal, and there seems to be growing consensus amongst informed observers that this is now a matter of ‘when’ rather than ‘if’. Brandon Lewis, the Northern Irish Secretary, said at the Conservative Party Conference that the conditions for doing so have already been met. Lord Frost reiterated the Government position that we are ready to act if acceptable proposals from the EU are not forthcoming.
For their part, Brussels have promised to bring forward new ideas – but that these will be entirely within the existing confines of the Protocol. This is very much in the spirit of their previous document which, whilst purporting to list ways in which the EU had taken a flexible approach, actually just said that the UK should align with it (‘temporarily, of course) on SPS checks.
So why not simply trigger Article 16 now? Well, as I explained all the way back in March, the Government grasps that this is a battle over optics as much as over technicalities. The object of the slower strategy is to give the other side ample room to engage meaningfully with unionist concerns. Part-suspending the Protocol must be seen as a last resort, not a first response, if the UK is to look like the reasonable party.
For their part, the EU has to try and find a way to reconcile its pretence that the Protocol is first and foremost about peace in Ulster with the fact that it has united every shade of capital-U Unionist opinion against it, and its claim that checks are necessary to protect the Single Market with the fact that British goods have been flowing into the Province without restriction for the best part of a year with nary a market distortion in sight.
Yet Frost likely still has the biggest mountain to climb. Ultimately, Brussels wants the Protocol to remain as it is at the moment and can, if it chooses, simply grit its teeth whilst Emmanuel Macron cuts off the UK’s nuclear power supplies. If London wants to secure real changes, on the other hand, it would have to persuade them to re-open the treaty, and then do what previous governments failed to do and actually conduct a negotiation well – not to mention find some leverage somewhere.