Under the Protocol the UK government is responsible for applying checks on goods entering NI from the rest of the UK to ensure that goods destined for the Republic of Ireland meet EU regulations. This is to avoid a "hard border" between the Republic and NI - i.e. avoid any need for checks at the land border.

Article 16 of the Protocol states that "if the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol."

It may be noted that "or diversion of trade" is a separate clause. It is not "serious diversion of trade which is liable to persist" but just "diversion of trade" which is a pretty low threshold.

In the months since the Protocol came into force there has clearly been diversion of trade, particularly in the case of agriculture and food, with many Northern Ireland businesses switching suppliers from those in England/Wales/Scotland to those is the Republic of Ireland. And this has happened notwithstanding that we are still in a "period of grace" before the Protocol has been fully implemented.

With the benefit of hindsight it seems obvious that at the time the Protocol was agreed both parties should have known that the diversion of trade condition in Article 16 would arise almost immediately. So why did they sign? It is one thing to make an agreement which you believe is likely to work but to include a "get out" clause just in case there are difficulties. But why sign an agreement where the conditions allowing the "get out" clause to be used are very likely to arise almost immediately?

So my question is: What could account for the agreement of terms subject to a "get out" conditional on circumstances which are seemingly inevitable.

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    It's impossible to answer this until those involved write their memoirs and archives are opened. And even then, they might not have thought the same thing. Perhaps the UK insisted to appease their hardliners and given themselves a way to nix the agreement. Note that there's a separate provision that allows it to be scrapped altogether with a year's notice, IIRC. And the EU probably agreed because otherwise it probably meant "no deal" right away. Like this they can blame the UK for making a fuss etc. Nov 11, 2021 at 18:23
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    According to Dominic Cummings the UK never intended to stick with the Protocol, although of course he only started saying that publicly after he was no longer a gov't adviser. Nov 11, 2021 at 18:26
  • "Diversion of trade" is a technical term in trade diplomacy. It refers to trade with a territory X being diverted from a more efficient producer Y to a less efficient producer Z because of the existence of a free trade agreement that includes X and Z but not Y; hence Y's exports to X face tariff barriers but Z's do not. Because the withdrawal agreement foresaw a free trade agreement between the EU and the UK, trade diversion in this sense was thought unlikely to occur. This technical term does not apply to trade patterns changing because of the different regulatory systems in NI and GB.
    – Senex
    Nov 12, 2021 at 12:32
  • Source for "diversion of trade"; see pp.19-20.
    – Senex
    Nov 12, 2021 at 12:34
  • It should be said that article 16 isn't so bad. The other side could retaliate. See the annex 7 of the protocol. See also theguardian.com/politics/2021/oct/04/… Mar 5, 2022 at 0:04

1 Answer 1


We can't be sure exactly what was going through the heads of the negotiators, but we can say some things about motives.

Negotiating against a deadline is essentially a game of chicken: the side that caves in first is going to get the worst of the deal. That is why these negotiations always go to the wire.

The EU has long experience of such negotiation, and hence so does the UK because it was part of the EU until recently. One of the habits of the EU in difficult negotiations is to kick the can down the road; write an agreement which includes the bits that can be agreed, and leave the difficult bits until later. This isn't an entirely stupid thing:

  • Having agreement on some things is better than nothing, and you can then go back to the difficult bits later on. Parts of the protocol are actually working reasonably well; its the food that is causing the real problems.

  • If you are really lucky something might happen to make the problem irrelevant.

  • The delay can let you gather information about the problem which will make agreement easier.

  • The political situation might change; you could be negotiating with different people, and their calculations might have altered due to elections or changes in public opinion.

So for all these reasons it made sense for the negotiators on both sides to agree to disagree on some issues, and hence to kick the can down the road.

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    I see what you mean. So your theory is that the EU said it wanted a lot of checks, the UK said that it could not agree to that because it would result in diversion of trade, and so they agreed that checks would take place except insofar as they resulted in diversion of trade! Basically agreeing to disagree but doing so in a way which has the appearance of agreement.
    – Nemo
    Nov 10, 2021 at 19:21
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    How can you be sure the "food problems", which seem to be at best 10% fall in GB->NI compared to last year are actually caused by Brexit and not by the pandemic? After all, the UK gov't has generally blamed the latter for empty shelves in GB. Nov 10, 2021 at 20:55
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    The UK seems to be producing less food as a result of EU workers leaving, so maybe they have less to export to anywhere, including NI? The drop to NI exports seem to match the global drop in UK food exports seen earlier (11%), albeit on a shorter time frame euractiv.com/section/uk-europe/news/… Nov 10, 2021 at 21:04

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