The article 16 vaccine row is over – but the damage has been done

The EU’s backtracking on its threat to override parts of the Northern Ireland protocol is not only welcome – it is necessary.

Under the protocol, goods can travel freely between the EU and Northern Ireland, and from Northern Ireland to Great Britain. EU officials were concerned that Northern Ireland could be used as a backdoor into the UK, so frustrating its proposals to restrict the export of vaccines from member states. Their solution? To invoke article 16 of the protocol, under which the UK and the EU unilaterally take “appropriate safeguarding measures”, to block EU exports of the vaccine to Northern Ireland. In doing so, the EU added fuel to the fire of an already contentious debate in Northern Ireland and undermined its own credentials as a guardian of peace in the region.

The latest row over the EU’s supply contract with AstraZeneca has passed, but the damage has already been done. The UK and the EU must focus on how to rebuild trust – and how to provide assurance that the same mistakes will not be made again.

The circumstances did not justify the use of article 16

The protocol states that article 16 can be used in the event of “serious economic, societal or environmental difficulties that are liable to persist”. While there is no definition of ‘serious’, the intention is that it should only be used in exceptional circumstances, for example to respond to a total collapse of the Northern Ireland economy or terrorist threats – and any measure must be limited in scope and duration to what is strictly necessary. There is good reason for these thresholds to be high. Reopening one aspect of the agreement risks reopening all of it – creating more constitutional friction and more uncertainty for businesses and consumers in Northern Ireland.

The EU’s justification, that the use of article 16 was necessary to avert “serious societal difficulties” that would arise if the supply of vaccines to member states was undermined, fell well short of that high bar. ^[1] The risk that Northern Ireland would be used as a route to circumvent export controls was entirely hypothetical. It was also implausible. Northern Ireland sources vaccines from Great Britain via UK contracts, while EU supplies go direct to member state governments to distribute. Even if an EU-NI-GB route opened up, the chances of it having a genuine effect on vaccine supplies across the EU are even more remote. It is right that the Commission backed down. .

The EU has now lowered the bar for calls to use unilateral measures

The EU failed to go through the process for using article 16. There was no prior notification of the UK government, and it appears to have acted without consulting the Irish representation in Brussels or the government in Dublin. That overhasty action meant it failed to think through the consequences of its action.

The most damaging is that the EU’s move gives impetus – and credibility – to ongoing calls to invoke article 16 on the UK side. Since the protocol came into effect, members of the DUP have been arguing that unilateral action is necessary to address (the much more tangible) problems it creates for Northern Ireland’s supply chains from GB. Arlene Foster, the first minister of Northern Ireland, had avoided publicly backing those calls – until yesterday.

The genie is out of the bottle and can’t put back in – but unilateral measures will not provide a sustainable settlement for Northern Ireland. Instead, the EU and the UK must find solutions to the challenges created by the protocol. The end of a grace-periods for certain agri-food paperwork and products provides an opportunity for the UK and the EU to demonstrate their commitment to working together, by agreeing long-term, sustainable, and proportionate arrangements for supermarket supply chains.

Political missteps can have damaging consequences in Northern Ireland

The article 16 debacle appears to be more cock-up than conspiracy, with EU sources saying that the decision to invoke it was as ‘oversight’. ^[2] The UK government too has been vulnerable to forgetting the unique circumstances of Northern Ireland, often finding itself backtracking on issues like GB stickers for Northern Ireland cars. But cock-ups on either side have damaging consequences in Northern Ireland, and both sides need to tread carefully if they are to live up to their rhetoric about the importance of maintaining stability.

This won’t be the last time that Northern Ireland’s special arrangements require careful consideration in implementing a UK or an EU policy. Under the protocol Northern Ireland is required to keep pace with changes to EU law – over time, as the UK and the EU statute books diverge, these types of challenges will multiply rather than diminish. Unless structures and systems are put in place to bring Northern Irish voices into the policy-making process, yet more missteps are certain to occur. 

The UK and the EU have spent the last four years grappling with the unique challenges posed to Northern Ireland by Brexit. They must not let this progress be undermined by avoidable errors.