(Chris J Ratcliffe/Getty Images)

Is it Britain’s turn to invoke Article 16 this week?

Who has the better poker face for this week’s EU-UK Joint Committee meeting – Gove or Šefčovič?

Artillery Row

“We hope to be able to resolve all of the issues on the ground without recourse to Article 16” of the Northern Ireland protocol, the chancellor of the duchy of Lancaster, Michael Gove, told MPs on the European Security Committee on Monday.

In his role as co-chair of the EU-UK Joint Committee established by the Withdrawal Agreement, Gove set out the areas needing resolution in his letter to his EU Joint Committee counterpart, Maroš Šefčovič, on 2 February. In that letter, Gove stated “we should reach agreement this week”. “This week” is now last week. Šefčovič has still not yet put his reply in writing.

But Šefčovič did join a forty-five minute group call last Wednesday with Gove and Northern Ireland’s first and deputy ministers, Arlene Foster and Michelle O’Neill, during which the DUP and Sinn Fein politicians spelt out the damage and the anger felt at Brussels’ cavalier imposition – swiftly rescinded – of Article 16 to prevent vaccines crossing the border from south to north.

What did Šefčovič learn from these testimonies? He was clearly unmoved by Foster’s conclusion that the Protocol needed “fundamental reform” – by which she ideally means scrapped. Instead, Šefčovič described mere “teething problems,” an interpretation mirrored by Michelle O’Neill who speaks only of “imperfections” that “need to be ironed out”. There is naturally every advantage to Sinn Fein in keeping the new settlement as intact as possible – for Nationalists, the erection of a regulatory border between Northern Ireland and Great Britain and an open border between the province and the Irish Republic is a dream come true.

So, are there any grounds for sharing Michael Gove’s optimism ahead of Šefčovič’s visit to London this Thursday for what should be the crunch Joint Committee meeting?

Gove has called for a range of mostly temporary fix-its rather than fundamental reforms. He wants the Joint Committee to agree to extend the grace period given to Northern Ireland’s supermarkets and their suppliers from 31 March this year until 1 January 2023. He wants similar extensions of the temporary alleviations for parcel delivery. Gove is also seeking for a “permanent solution” to be found for the export from Britain to Northern Ireland of chilled meats (including sausages) which – unless amended – the existing provisions will effectively ban from July.

Agreeing to these stalling techniques would not undermine the fundamental principles of the Protocol. That is why the British government feels its proposals ought to be acceptable to Brussels. They do not represent a challenge or a solution, merely a failure (on Britain’s part) to look reality squarely in the face.

Article 16’s invocation could be made to look like the equivalent of the Berlin airlift

Appearing before the European Scrutiny Committee yesterday, Gove’s tone of quiet optimism was less than wholly convincing. “Trust was eroded” by Brussels’s momentary spasm on 29 January when it invoked Article 16 without warning to safeguard its inadequate vaccine supply. Not quite articulated but on everyone’s mind was whether the EU’s misstep has nevertheless created an opportunity for Britain since London could no longer be accused of being the first to defile the bureaucratic sacraments. If that is the intent, it is only after the delaying measures have been sought and rejected. Gove’s unanswered letter to Šefčovič of last week had demanded “rapid action”, but as yet there had only been “good and constructive conversations” and, admitted Gove, both sides were “very far from resolving all those problems.”

If during Thursday’s Joint Committee meeting Šefčovič refuses even to meaningfully extend the grace periods then he will do so fully conscious that Boris Johnson has not ruled out invoking Article 16. And if that refusal to even countenance an extension to an exemption period does not provoke the prime minister into invoking Article 16 then it is hard to see what will – unless Johnson prefers to allow a post-grace period of chaotic shortage to begin before he triggers the clause, thereby putting beyond doubt the necessity of its imposition even before the disapproving eyes of Dublin and Washington DC? In that scenario, the Article’s invocation could be made to look like the equivalent of the Berlin airlift, coming to the rescue of a besieged populace. But it is pretty desperate stuff to take things that far.

Article 16 allows the application of unilateral and temporary remedies to measures that are causing “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade.” Under the procedures laid out in Annex 7 (which were ignored by the EU’s panicky temporary vaccine export ban), a month’s notice of an intent to use Article 16 should be provided, during which a compromise is ideally brokered. With the scheduled ending of most of the grace periods within the next seven weeks, the time for Johnson to announce an intention to invoke the article is drawing near.

More likely, Šefčovič will on Thursday offer just enough (a three or six month grace period extension) to neuter British outrage, and thereby remove the justification for invoking Article 16, without conceding anything of substance.

What Michael Gove will not do is admit that the whole set-up is unworkable without a fundamental renegotiation along the lines the DUP seeks and, without which, that party’s prospects of leading the next Northern Ireland administration in 2022 may be in jeopardy.

Asked by the Conservative MP, Richard Drax, whether he thought the protocol was fit for purpose in the long term, Gove replied, “it’s not working at the moment. It can be made to work” adding “we don’t need to ditch it in order resolve these issues.” But he did not expand upon how extending grace periods resolves the underlying issues nor did he convincingly answer Drax’s follow-up question regarding how the problems created by the Irish Sea border were resolvable. “It is the case,” Gove insisted, “that the United Kingdom’s constitutional, territorial and political integrity is unaffected.”

The United Kingdom of Great Britain and Northern Ireland will be shown to be bound by very strong fibres indeed if it survives the failure to address, and not just put off, the predicament in which the province has been placed.

Enjoying The Critic online? It's even better in print

Try five issues of Britain’s newest magazine for £10

Critic magazine cover