Comment

The EU Commission’s Article 16 fiasco: learning the lessons

Bobby McDonagh / Feb 2021

Photo: Shutterstock

 

The Irish Foreign Minister, Simon Coveney, has rightly emphasised the importance of learning the lessons from the European Commission’s recent fiasco in moving to trigger Article 16 of the Brexit Northern Ireland Protocol. Even though the proposal was withdrawn immediately once the Commission’s error had been identified, in response to the outcry from London, Dublin and Belfast, the fiasco has done significant damage.

Now that the dust has begun to settle, it is essential and urgent to ensure that the right lessons, not the wrong ones, have be learned so that such a mistake cannot recur.

The first necessary lesson is that nothing to do with the Northern Ireland Protocol should ever be considered merely technical. Everything to do with it is highly political.

The second is to confirm that Article 16 of the Protocol is a last resort measure to be considered only in very exceptional circumstances.

The third lesson concerns the Commission’s internal procedures. It seems clear that the initiative to trigger Article 16 was drafted within the Commission without the involvement of those who had negotiated and therefore fully understood the Northern Ireland Protocol. It seems to have resulted from a somewhat tone-deaf overzealousness on the part of officials dealing with the vaccine issue as well as the non-functioning of simple alarm bells at political level. In drafting a regulation to equip the EU to monitor, and possibly control, the export of vaccines, the aim seems to have been to avoid any risk that Northern Ireland might be used as a backdoor for vaccine exports to the rest of the United Kingdom.

The lack of appropriate procedures within the Commission on this highly sensitive issue was such that not even Michel Barnier seems to have been consulted. This episode, even allowing for the tight deadlines involved, underlines that the Commission’s must ensure that, in future, those in the Commission with direct overall responsibility for the Northern Ireland Protocol are fully consulted about every issue - however technical it might appear - that bears on the Protocol. Hopefully, such improved procedures are already in place.

Fourth, the Commission has over several years been remarkably open in consulting Ireland on every relevant aspect of Brexit. However, in this case, a highly political and sensitive issue relating to Northern Ireland slipped through the net. The Commission’s procedures for consulting Ireland on the Protocol must ensure that they are systematic and fool-proof; and that good intentions are fully backed up by good practice.

Fifth, the United Kingdom should similarly, wherever possible, be consulted in advance by the Commission about all matters relating to the Protocol, as indeed the Commission would expect to be so consulted by the UK.

These are five very important lessons. However, a number of erroneous “lessons” have also been fed into the narrative. To draw the wrong lessons would do as much damage as to ignore the valid ones.

The screw-up does not mean, for example, that the European Commission is insensitive to Northern Ireland. On the contrary, the Commission’s overall approach over many years has consistently demonstrated a deep understanding of Northern Ireland. The recent disastrous proposal arose not from any change of heart by the Commission but from faulty procedures that by-passed or short-circuited the necessary internal and external consultation and coordination.

Nor does the debacle mean, as some unionists have proclaimed, that Article 16 should now be triggered for a different purpose. On the contrary, recent events suggest the very opposite. The initial intention to use the Article was reversed within a matter of hours, in part because of the legitimate outrage expressed by Arlene Foster and others. Any proposal by the UK to trigger the Article in a way that would undermine the operation of the Protocol would be entirely inappropriate. Were that ever to happen, it should be met by similar howls of outrage. The British Government, to its credit, remains committed to implementing the Protocol.

Importantly, it was never intended, as has been suggested, to “blockade” the Irish border. Nor was the abortive proposal, for all its folly, designed to restrict the availability of vaccines to Northern Ireland. Its purpose, had it been adopted, would have been - should the circumstances have arisen - to avoid the possibility of vaccines being exported through Northern Ireland to the rest of the UK. While it can certainly be argued that such an objective was misguided, it is not at all the same thing.

There is a final lesson to be learned from the episode. The EU must find a way to step up its capacity to communicate with the public. Of course, national Governments and the media also have to play their role. But the EU has a responsibility, including to itself, to ensure that the right lessons are not confused with the wrong ones, in this area as in others.

Bobby McDonagh

Bobby McDonagh

February 2021

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