In 2021 there were repeated calls for the triggering of Article 16 of the Northern Ireland Protocol. The ‘Safeguards’ provision in the treaty, Article 16 sets out the developments that it was agreed cannot reasonably be accommodated within the actual operation of the agreement such that they give grounds for either side to commence derogation procedures.
In July 2021 the then Government published its Command Paper, The Northern Ireland Protocol: the Way Forward in which they said they believed the red lines had been crossed and the UK had the right to trigger Article 16. However, they stopped short of doing so in the hope that an alternative solution might be found. On 13 October the EU responded with a series of papers that effectively formed the basis for the Windsor Framework introduced in 2023.
Having allowed well over a year to pass since the introduction of much of the Windsor Framework, I decided it was time to consider whether the Windsor Framework has addressed the presenting difficulty in relation to one of the Article 16 red lines, trade diversion.
Data from both the Northern Ireland Statistics and Research Authority (NISRA) and the ONS suggests that trade diversion is taking place notwithstanding the Windsor Framework amendments to the Protocol.
NISRA figures show that Northern Ireland’s purchases of goods increased from 2020 to 2023 by 24% from GB, but by 50% from the Republic of Ireland, meaning twice the growth rate in the buying of goods into Northern Ireland that would previously have come from our integrated United Kingdom economy.
The Office for National Statistics Business Insights and Conditions Survey, meanwhile, states that 13.1% of currently trading manufacturers based in GB had sent goods to Northern Ireland in the 12 months to the end of 2024. But in January 2021, 20% of manufacturers in GB were sending goods to Northern Ireland. So, in just those four years there has been a dramatic fall in the number of manufacturers supplying goods to Northern Ireland. It has nearly halved in four years.
The ONS data for 2024 tells us more: 11.7% of companies say they have stopped trading with Northern Ireland. Why? Because even in crossing the Windsor Framework’s green lane, you have to successfully apply to join a trusted trader scheme, need an export number, to complete customs and (where relevant) SPS forms, be subject to 100% documentary checks and 10 to 5% identity checks, and have Not for EU labels.
And all this has to be seen in the context that trade diversion is likely to get worse this year with the introduction of the Windsor Framework parcel’s customs border on 31st March and the use from July of the EU border control posts, currently under construction (courtesy of the British tax payer), dividing our country into two.
For those who might be tempted to say, what does it matter if people in Northern Ireland can now get the goods they want from the Republic of Ireland instead? The answer is, first, that they cannot always get what they want from the Republic of Ireland, certainly not at UK prices, and second, this is having the effect of quietly changing, by stealth, without a prior referendum, the constitutional-economic foundation upon which Northern Ireland rests.
Until 1 January 2021, Northern Ireland was a fully integrated part of the UK economy, and this economic reality was in harmony with the underlying constitutional reality. The advent of the developing Irish Sea Border, however, is gradually replacing for many purposes the UK single market for goods with a GB single market for goods, and an all-island/EU single market for goods. In this the all-Ireland economic and constitutional reality are aligned in that the new single market for goods is underpinned by laws made by Dublin and the rest of the EU. The immediate impact of this change is to lay the foundation for an all-island economy, the prerequisite of an all-Ireland state, that will re-route previous trade through the all-island framework that the new legal regime creates.
The Secretary of State sought to dismiss the serious concerns regarding trade diversion, by suggesting that the triggering of Article 16 was not a responsible way forward in the context of the agreement, as if Article 16 was not part of the agreement! He also suggested that it did not need to be triggered because goods were still flowing, as if Article 16 was concerned with trade cessation rather than trade diversion! If the Government is committed to the Windsor Framework, then it must be committed to all of it including Article 16. If in truth it is committed to all parts of the agreement apart from Article 16, then it is guilty of a discriminatory form of cherry picking that can only be understood as a willingness to help nationalists create an all-Ireland economy and silence unionists. The stark reality is that the presence of trade diversion is demonstrating that the changes put forward by the Windsor Framework in response to the trade diversion difficulties set out by the Government in July 2021 have not dealt with the presenting concern. The Protocol/Windsor Framework is still failing in its own terms, and it is also undermining the Belfast Good Friday Agreement. It must now be abandoned for the solution that works, Mutual Enforcement, as set out in my EU Withdrawal Arrangements Bill.
The Northern Ireland Protocol is failing and is undermining the Belfast Good Friday Agreement
