Threat of Article 16 still hangs over Northern Ireland businesses

By Joshua Taggart 
12/01/2022


Unionist politicians are in a bind. Their instincts – as well as their desire to appeal to their staunchest supporters – tell them that the Northern Ireland Protocol is an assault upon their most fundamental identity: Britishness. Any border, whether economic or constitutional, between Northern Ireland and Great Britain should be unacceptable. Yet the DUP do not wield the same power in 2022 that they did during Theresa May’s tenure; Boris Johnson’s majority is no longer reliant upon Unionist support, and Conservatives are too consumed by other issues to concern themselves with a constitutional crisis with no clear solution in sight.

Unionists are furious about the deal but have no real leverage to make the Johnson government trigger Article 16. Foreign Secretary Liz Truss, taking over from Lord Frost in negotiations with Maros Sefcovic, has threatened to trigger Article 16 if the EU continues to play hardball, but it’s difficult to see how this would help in any way instead of making things much worse. The EU has already triggered it in the past over a vaccine row, showing just how disruptive this option can be. Article 16 hangs like the Sword of Damocles over businesses operating in Northern Ireland, a “nuclear” option that can be triggered at any moment.

Her Majesty’s Government’s prioritisation of trade issues over constitutional concerns has provoked a strong reaction from Unionist politicians, who feel they are being abandoned for economic interests. Lord Dodds threatened that “if the UK government can’t or won’t act, then Unionism will” after the government reportedly dropped its demands to make Northern Ireland exempt from the European Court of Justice’s enforcement of EU law in NI.

Under the Protocol, Northern Ireland is part of the EU’s single market, with a border between Northern Ireland and Great Britain, and the ECJ as the supreme legal arbiter in the territory. Unionists see this as a violation of the Belfast Agreement of 1998; others see it as the inevitable consequence of Brexit. Whilst the concept of a border dividing the island of Ireland or separating NI from GB has both sides of the debate concerned, there are also trade consequences of the protocol which have negatively impacted business. As Great Britain is NI’s largest trading partner, both sides need border checks, tariffs and restrictions to be as limited as possible - though the imperative is lesser on the GB side. However, the European Union maintains it cannot accept this for fear of jeopardising the benefits of membership in the Common Market.

Customs checks, limitations on cross-border trade and mountains of paperwork are negatively impacting businesses on all sides – the most logical approach would be for trade to be facilitated as much as possible to ensure that all countries do not miss out on the benefits of free trade between heavily co-dependent partners. Northern Ireland could greatly benefit from being party to both trading blocs as it was in the past, but the DUP’s threat of collapsing Stormont will concern governments and businesses in the immediate term until trade issues are smoothed over in the long run. The upcoming elections in Northern Ireland creates further political risk.

The most pernicious aspect of the issue is the division between the Northern Irish electorate and MPs in Westminster. Polling by UK in a Changing Europe revealed that whilst 52% of Northern Irish voters believe the Protocol is “on balance a good thing for NI”, only 25% of Labour MPs and 23% of Conservative MPs could say the same. Unsurprisingly, far more Conservative than Labour MPs were neutral about the Protocol, considering they were the ones who ratified it.

Conservatives have an interest to support their own withdrawal agreement and smooth over the cracks through lengthy negotiations. Labour MPs are split between opposing Brexit and its various consequences and swallowing the Protocol in a bid to gain back Leaver support in the Red Wall seats. The DUP have an interest in signalling their opposition to the Protocol by collapsing Stormont, but it is unclear whether the Northern Irish people would “make their voices heard” in the manner they intend. With polls indicating a majority support the arrangement and mistrust the British government, Unionists are forced to simultaneously tie themselves to the Conservative mast and ask them for help while protesting the deal they negotiated.

It is hard to see a scenario in which Unionists get what they want from this dynamic. In all likelihood, the Conservative government will prioritise easing trade restrictions and regulatory barriers while sidestepping the thorny issue which Unionists have raised over Northern Ireland’s place in the UK. Trade negotiations will likely be over whether checks should take place in NI ports or at a soft border on the island of Ireland, whether the ECJ or an independent body will arbitrate disputes, and how many checks can be removed while maintaining the integrity of the EU Common Market. It is up to the EU and UK to be charitable, amenable and respectful to each other during these negotiations, there is little to be gained from a metaphorical nuclear option. Triggering Article 16, for now, fails to serves anyone’s interests.