By Moore Holmes
It’s worth repeating, Article 16 is no silver bullet. Nor is it a guarantee the Irish Sea Border is removed. It would inaugurate time limited negotiations between the United Kingdom and the European Union to find a “commonly acceptable solution.” If a solution is not found, the United Kingdom’s proposed safeguard measures take effect.
Theoretically, the United Kingdom could introduce safeguard measures immediately, under an emergency clause. But you would expect they will want to see what they can achieve via the negotiation route.
What could the United Kingdom safeguard measures be? Article 16 isn’t as specific as it pretends to be about the scope of safeguard measures. It says unilateral action should be restricted to what is “strictly necessary in order to remedy the situation.” Plenty of room under what’s necessary.
The most likely course however, if the Article 16 button is hit, is both the United Kingdom and the European Union reach a “commonly acceptable solution” before the end of the allocated negotiation month. Something between the United Kingdom’s July Command Paper and the European Union’s proposals made a couple of weeks ago.
In the event a solution cannot be reached, Article 16 would put the Protocol on life-support. If the right unilateral measures are taken, the Irish Sea Border could be gone – at least temporarily. The UK/EU are required to meet every so often to try and agree an end to the measures.
The EU would likely argue the use of Article 16 is unwarranted. Perhaps even take legal action. Ironic considering part of the rationale behind invoking Article 16 is to do with the Europeans Court of Justice’s supremacy. Also, Article 16 entitles the “other” party to take “rebalancing measures.” What would they be?
In any case, invoking Article 16 would show serious intent from the United Kingdom to address the Protocol problem. The UK could negotiate with the EU, knowing that if they can’t drive the necessary concessions, they can just take unilateral action anyway. A strong negotiating position.
Despite all the hot air, it looks like we’re watching the stage being set for something mid-December. Will the United Kingdom compound one betrayal on top of another?
A showdown is looming, and going on previous form, Loyalists/Unionists should not be overly optimistic this Prime Minister will deliver.
Surely, therefore, political Unionism must do all it can not just to further demonstrate the Article 16 test has been met, but also to spell it out to the Prime Minister and the European Union, it’s the Irish Sea Border or the Belfast Agreement? If they do not remove the former, Unionism walks from the latter.