As if Boris Johnson needed another crisis, Lord Frost has cranked up the rhetoric on the Northern Ireland protocol to a new and dangerous level. He told peers this week that the EU “would be making a significant mistake if they thought that we were not ready to use article 16 safeguards”.
The man who actually negotiated the protocol demanded “real negotiation between us and the EU” as if the ones that took place against a self-imposed clock in October 2019 were somehow false and therefore invalid. Frost wants the EU to sit down and discuss revising the withdrawal agreement in line with the command paper he published in July.
Triggering article 16 of the Northern Ireland protocol
A few days ago, Frost told a meeting of the British Irish Association that, “The threshold for triggering article 16 has been met and it is open to the UK Government to take a range of safeguard measures on this basis”.
It is nothing more than whistling in the dark.
Former Treasury and EU Commission insider, Mujtaba Rahman, tweeted that behind the move is an attempt to convince the EU there can be no productive relationship with the UK until protocol is overhauled. If true, it begs the question of who needs that productive relationship the most?
Make of that what you will
— Mujtaba Rahman (@Mij_Europe) September 13, 2021
The Institute for Government has a nice explainer about triggering article 16. Firstly, it doesn’t define what constitutes “serious economic, societal or environmental difficulties”, or what a “diversion of trade” amounts to, so Lord Frost cannot be sure that the threshold has been met.
Secondly, there has to be official notification and a period of 30 days for negotiation during which no measures can be taken. If negotiations fail and one of the parties then adopts unilateral measures, the other may take “proportionate rebalancing measures”. These measures are subject to review every three months, although either party can also request a review at any point.
In any event Article 16 is not a with-one-bound-Jack-was-free device to get out from under the protocol. David Allen Green, in a typically informative thread, explains that the parties are only entitled to use “appropriate safeguard measures.” There is no provision for the protocol even to be suspended, let alone scrapped altogether as the DUP are pressing for. What Article 16 is intended to do is safeguard the protocol not terminate it.
In addition, whatever measures are taken must be “(a) restricted with regard to their scope and duration, (b) strictly necessary in order to remedy the situation and (c) priority shall be given to such measures as will least disturb the functioning of this Protocol.”
Frost agreed to these provisions but there is plenty of scope for disagreement about what they mean in practice.
We need the EU more than the EU needs us
The EU supplies over a quarter of the food consumed in Britain (2019 figures) and if you follow on Twitter @MygridGB, you will see over 10 percent of our electrical energy is imported via interconnectors from Europe. In recent days, it has reached 17 percent. In Northern Ireland it is 100 percent.
It does not take a genius to see who is wielding the bigger sticks when it comes to ‘rebalancing measures’.
Frost’s threats are empty ones and come as Brexit problems are beginning to overwhelm the government.
This is not to suggest that Johnson isn’t reckless enough to invoke article 16 if he felt there were electoral advantage in it, but in the end any attempt to fundamentally rewrite the protocol will fail.
More delays to Brexit checks
In a little over a fortnight, new import checks were supposed to come into effect for all goods from the EU but have now been delayed until various dates in 2022 – a “pragmatic new timetable” according to Lord Frost. To others it’s a humiliating climb down
Industry says the checks should not be delayed, with some high street retailers apparently telling the government that delays “would not be helpful as they would add more uncertainty”.
Food and Drink Federation CEO Ian Wright has said:
“Most of our members who do this stuff regularly have done an enormous amount of work on this and invested really considerable sums in training, in getting new relationships with customs agents and in personnel. That’s all going to be wasted to some degree if it doesn’t start on 1 October.”
The enormous amount of work is going to be wasted. The delay was almost certainly inevitable. Port operators have told The Independent that they are not ready and looked set to miss the imminent deadline anyway. The ports say they are struggling to physically build the infrastructure needed for these checks because of shortages of building materials and labour.
Total failure to prepare for Brexit
The government has essentially admitted that after nearly five years they have totally failed to prepare for the consequences of Brexit which were obvious from the moment in 2017 when Theresa May announced Britain would leave the single market. Going ahead with the checks would have risked escalating chaos and further damage to supply chain that are already stretched beyond breaking point.
In contrast the EU had all the necessary border infrastructure in place in plenty of time.
The Guardian also quotes M&S chief Archie Norman on LBC saying the rules on exports have added 24-hour delays and “serve no purpose at all” as food standards remain aligned to the EU. He called it “a pointless exercise”. But this is Brexit. Inside the EU, members are part of an eco-system including market surveillance and legal enforcement via the European Court of Justice. Food quality is checked at source in the factory.
Outside the EU the same checks are still needed, but must now take place at the border. Did he not realise this in 2016?