Wales, Article 16 & the Northern Ireland Protocol

Published 24/11/2021   |   Reading Time minutes

The Northern Ireland Protocol (“the Protocol”) is part of the Withdrawal Agreement, which set the terms of the UK’s exit from the EU. It set up new arrangements for the UK-EU land border between Northern Ireland and Ireland, an EU Member State. 

In recent months, the UK Government has called on the EU to renegotiate the Protocol because it is leading to several issues, some of which it lists as “disruption to supply chains, increased costs, and reduced choice for consumers” in Northern Ireland.

Lord David Frost has repeatedly warned, most recently on 20 November, that the UK could use Article 16 if changes to the Protocol aren’t made. Article 16 allows for safeguarding measures to be taken if the Protocol leads to certain difficulties, or to trade diversions. The First Minister has said that this would “make a difficult situation worse, not better” and should be avoided.

This article explains Article 16, how it relates to future changes to the Protocol and why it matters to Wales.

Why does the UK Government want to change the Protocol?

The Protocol was agreed in 2019 but is not yet fully in place because the UK and EU disagree on how the new arrangements should work.

New border checks between Great Britain and Northern Ireland have either been postponed jointly by the UK and EU, or have been postponed unilaterally by the UK. This means that the full effect of the Protocol has not yet been felt.

Northern Ireland Protocol: explainer

It was agreed in the Protocol that Northern Ireland would continue to follow some EU rules, while the rest of the UK (as Great Britain) could change its rules.

This means that the checks ordinarily required by the EU on products entering its market must now be carried out on arrival in Northern Ireland from Wales, England and Scotland. The BBC has produced an infographic to show this.

This is sometimes referred to as having created a ‘border in the Irish Sea’.

The arrangements require Welsh ports to set up new border control posts, described by the Welsh Government as “one of the largest and most complex infrastructure delivery programmes” that it is involved in.

The UK Government wants to renegotiate the Protocol because it is unhappy with some of its terms and the effects they are having. The EU has said it will not renegotiate the Protocol but is willing to discuss solutions with the UK. Both have put forward proposals on how to resolve the situation and discussions are ongoing.

Where does Article 16 come in?

Article 16 does not provide for renegotiation or permanent changes to the Protocol.

Rather, it allows the UK and EU to take safeguarding measures if the Protocol leads to certain difficulties or to trade diversions. This is described as:

...serious economic, societal or environmental difficulties that are liable to persist.

If either the UK or EU believes that the Protocol has led to such difficulties, or to trade diversions, they can use safeguarding measures to try to remedy the situation. Article 16 also provides that the other party can respond to safeguarding measures with their own rebalancing measures.

Annex 7 of the Protocol sets out the procedure to be followed by the UK and EU when using Article 16.

What type of measures could be taken?

Article 16 does not describe which measures are allowed but it does set some rules for measures:

Article 16 measures

Safeguarding measures must be “appropriate” and restricted in their scope and duration to what is strictly necessary to remedy the situation.

Rebalancing measures must be “proportionate” and strictly necessary to remedy an imbalance caused by safeguarding measures.

For both, priority must be given to measures which least disrupt the Protocol overall.

In its proposals, set out in a command paper, the UK Government links Article 16 to changing the Protocol:

Rather than use Article 16, we would prefer to find a consensual path. We now need urgent talks that can try to find a new balance for the Protocol.

However, academics have stated that Article 16 measures do not provide an option to renegotiate or change the Protocol. Professor Robert Howse of New York University Law School says that Article 16: not the kind of provision designed to trigger renegotiation or even permanent adjustment of specific commitments or mechanisms in the Protocol.

The EU has said in its proposals that it wants to find a “permanent” solution.

How might this affect Wales?

How disagreements in relation to the Protocol are resolved will have a significant impact on Wales, including its traders, exporters, ports and people.

  1. If Article 16 is invoked, the impact on Wales will depend on which safeguarding measures are chosen. Likewise for potential EU rebalancing measures in response, if any are taken. Some media outlets, including Euronews, have suggested that the EU could suspend the UK-EU Trade and Cooperation Agreement, the treaty which establishes their new relationship.

    Lord Frost told the House of Lords in October that he expects that Article 16 measures would be brought about via secondary legislation. This could require action by the Welsh Government..

    The First Minister said on Friday that Welsh trade would be “particularly badly affected by any deterioration” in UK-EU trading relations. Triggering Article 16, he said, would “make a difficult situation worse, not better” and that Wales has a “direct interest in seeing that the triggering of Article 16 is avoided.”
  2. If changes are made to the Protocol, the degree to which they affect Wales will also depend on the nature of such changes. For example, the UK wants to replace the Protocol’s subsidy control rules and simplify existing rules for trade between Great Britain and Northern Ireland, described as “burdens” in its command paper. Changes made by UK legislation could require the consideration of the Welsh Government and/or Senedd.

The dispute is rumoured to have resulted in delays to finalising the UK’s participation in EU research and space programmes, with the EU Commissioner, Mariya Gabriel, saying that other UK-EU issues “need to be tackled first”. This has resulted in delayed payments to UK researchers and companies and recently led Cardiff University to voice its concerns.

Matters within the Senedd’s remit could also be impacted, including wider UK-EU arrangements, the common frameworks programme, the operation of the UK Internal Market Act 2020 and other post-Brexit legislation, and external affairs.

Article by Sara Moran, Senedd Research, Welsh Parliament