Article 16 could change everything: Heres how it works

EU’s reaction to triggering of Article 16 discussed by Parker

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The issue over the Northern Ireland border has been a thorn in the side of negotiators since Brexit began and is still far from being resolved. Over the weekend, the EU heralded a “change in tone” from the UK, but the UK appeared to pour water on this positivity, saying “significant gaps” still remained. And speculation is now growing the ULK will trigger Article 16 before the end of the month.

What is Article 16?

Article 16 is a clause within the Brexit deal on the Northern Ireland protocol, agreed between the EU and UK in 2019.

Under Article 16, either side – the UK or EU – can take unilateral action to “safeguard” itself if either party concludes the deal is leading to serious “economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”.

These safeguarding measures would amount to suspending parts of the deal and how trade had been agreed to operate between Northern Ireland and the rest of the UK.

If either side wants to trigger Article 16, they must have evidence the threshold to do so has been met.

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The deal doesn’t set out exactly what the problems might be that could warrant the use of Article 16, but the UK has said that, in its opinion, the threshold has now been met.

If Article 16 were to be triggered, a month’s notice would be required, though immediate action is allowed in “exceptional circumstances”.

What would happen if Article 16 came into force?

The clause isn’t designed to put an end to constructive talks – negotiations would continue if Article 16 was triggered.

The measures in place as a result of Article 16 would then be reviewed every three months with a view to remove them and solve the border problem.

But this assumes there would be no retaliation from the EU, which there almost certainly would be.

If the EU concludes the UK’s actions create an “imbalance” between its rights and obligations under the protocol, then it can take “proportionate rebalancing measures”.

These are not defined and would largely be determined by what the UK does.

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The EU is now reportedly putting together a retaliation package for the UK if it were to trigger Article 16, which would include export sanctions or even a suspension of the entire Brexit deal.

This would have a huge knock-on effect for British trade, and the UK will be desperate to avoid it.

Last week, the UK’s Brexit minister, David Frost, called on the EU to “stay calm and keep things in proportion”.

He described threats by the EU to suspend the Brexit Trade and Cooperation Agreement as “massive and disproportionate”.

Why is the Northern Ireland border so tricky?

The Northern Ireland border with the Republic of Ireland is the only land border the UK shares with the EU.

With decades of unfettered trade while the UK was an EU member, this posed huge problems in negotiating a deal that would take the UK out of the EU single market but preserve the livelihoods of millions.

The protocol agreed aimed to prevent a hard border between Northern Ireland and the Republic of Ireland after Brexit.

Under this agreement, Northern Ireland is kept in the EU’s single market for goods.

This means goods don’t have to be checked as they cross the Irish border, instead, some checks and controls are required on goods entering Northern Ireland from the rest of the UK.

This has caused difficulties for some businesses and is opposed by unionist parties in Northern Ireland, which say it undermines Northern Ireland’s constitutional position as part of the UK and creates a border in the Irish sea between Northern Ireland and the rest of the UK.

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