Frost warning: NI protocol faces series of “rolling crises”

Lord Frost:
UK Government via Wikimedia Commons

Lord Frost, architect of the Northern Ireland protocol (NIP), has warned it faces a series of “rolling crises” unless a “new balance” is negotiated in the way the protocol operates.

In an article co-written with Northern Ireland secretary Brandon Lewis and published in The Irish Times, the Cabinet Office minister for our post-​Brexit strategy says, “ goods must be able to move as freely as possible within the customs territory of the UK and that goods important to Northern Irish consumers supplied from Great Britain continue to be available.”

In a telling if somewhat surprising admission, he says, “But it is precisely because we are trying to operate the protocol that problems are arising for so many people.” As professor Chris Grey pithily put it, Brexit seems to work best when it is not implemented.

Frost concedes he ‘assumed’ trade would not be seriously impacted

He concedes that in the agreement which he negotiated, he ‘assumed’ a legally nebulous reference to ‘facilitate’ trade between Great Britain and Northern Ireland would somehow mean the binding commitment to apply the EU’s official border controls would somehow be finessed or overlooked.  He relies on paragraph 2 of Article 6 of the protocol which says (our emphasis):

“Having regard to Northern Ireland’s integral place in the United Kingdom’s internal market, the Union and the United Kingdom shall use their best endeavours to facilitate the trade between Northern Ireland and other parts of the United Kingdom, in accordance with applicable legislation and taking into account their respective regulatory regimes as well as the implementation thereof. The Joint Committee shall keep the application of this paragraph under constant review and shall adopt appropriate recommendations with a view to avoiding controls at the ports and airports of Northern Ireland to the extent possible.”

The NIP thus already includes mechanisms for agreeing with the EU how these checks might be reduced to the minimum or avoided, by aligning with EU food regulations as one example.  However, Lord Frost is adamant that the UK will not agree to this on the grounds of sovereignty, although it would not prevent the UK imposing higher standards if it wished.

The two sides remain far apart

Last week the EU and UK agreed another extension to the grace period for the trade in chilled meats until the end of September.

The UK statement quoted Lord Frost saying it was a “positive first step but we still need to agree a permanent solution” with the clear implication that the protocol requires re-negotiating.

Frost said, “The chilled meats issue is only one of a very large number of problems with the way the Protocol is currently operating, and solutions need to be found with the EU to ensure it delivers on its original aims: to protect the Belfast (Good Friday) Agreement, safeguard Northern Ireland’s place in the United Kingdom, and protect the EU’s single market for goods. We look to work energetically with the EU to do so.”

The EU statement explicitly says “The purpose of this additional period is to allow stakeholders, and in particular supermarkets in Northern Ireland, to complete the adjustment of their supply chains.”

When the co-chairs of the Partnership council cannot even agree on the purpose of a three-month extension, it is clear they remain far apart.

Polls show opinion in Northern Ireland is divided

Frost and Lewis also cite a poll carried out for Queen’s University Belfast by pollsters LucidTalk which revealed that Northern Ireland voters are evenly divided over the NIP.

They say opposition is growing, although the poll seems to show only a small increase (up 4 per cent since March) in those disagreeing with the proposition that the NIP is appropriate for managing the effects of Brexit on Northern Ireland. Overall, 47 per cent now agree and 47 per cent disagree.

Despite this, 56 per cent believe it provides Northern Ireland with a unique set of post-Brexit economic opportunities. 

Professor Katy Hayward, from Queen’s University and a Senior Fellow of the UK in a Changing Europe, noted: “People in NI are highly exercised by the Protocol, both for and against – and in equal proportions. The political tensions are compounded by the low levels of trust in the political parties when it comes to the Protocol, and by the fact that the Protocol is likely to feature heavily in the next Assembly election.”

The UK government again faces a dilemma

It also reveals the UK government’s eternal Brexit dilemma as it confronts the reality of what it agreed to in the 2019 Withdrawal Agreement.

Brexit means a border between Ireland and the UK. It must either be on the 310-mile land border with hundreds of crossing points or at a limited number of ports and airports – in other words, a sea border.

The Queen’s University study showed there is more opposition to the land border with 51 per cent opposing checks and controls taking place at the land border while 38 per cent support it. The province voted against Brexit in 2016 by 56 per cent.

The keys that rendered the pre-Brexit land border invisible were the single market and the customs union, and they could do the same for the sea border, but pursuing a hard Brexit option preferred by Johnson rules that solution out for both land and sea.

Frost warned about warnings

In response, the Irish Taoiseach, Michael Martin speaking on RTÉ’s Radio One and reported by The Irish Times, said that the time for warnings by either side was over and political leadership was needed to ensure that negotiations between the EU and UK over the protocol are satisfactorily resolved.

Mr Martin also responded to comments made by the British Ambassador, Paul Johnston about the Frost/Lewis Irish Times opinion piece where he said it was “not sabre rattling” but reflected a real concern about the Unionist community fears about the protocol.

The ambassador had warned that the protocol was “not going to last” unless both communities in Northern Ireland felt that it was working for both and respecting their interest which was not happening at the moment as there was “big disaffection with the protocol in the unionist community.”

The veiled threat of a return to violence is being used by both sides to secure their favoured solution without making too many significant concessions.

EU Commission Vice President Maroš Šefčovič has warned that if the UK did not take steps to implement the protocol, or to remedy measures taken through unilateral actions in March, the EU would “step up” legal action against the UK.

Speaking at an event organised by the EU-UK Forum, he said, “It cannot be just for the EU to seek solutions for practical problems that the UK flags up.”

The Brussels correspondent of The Guardian, Jennifer Rankin, reporting the same event tweeted:

The only option available is the NIP and Lord Frost would be well advised to stop stoking division and work towards trying to resolve the issues through agreement.  And if a solution agreeable to both traditions in the province cannot be found, to then accept that closer alignment – and even membership of the single market and customs union – is probably the only way out.

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