Frost cools tone on invoking article 16 but the retreat may be temporary

After David Frost and Maros Sefcovic met over lunch in London on Friday, both insisted that their positions on the Northern Ireland protocol had not changed.

Frost said significant gaps remained, that the full range of issues Britain had identified, including the role of the European Court of Justice (ECJ), had to be addressed.

Sefcovic said his mandate from EU leaders allowed him only to discuss options within the framework of the protocol, adding that his position on the ECJ was unchanged. He identified a change of tone in the discussions and that was also evident in Frost’s statement, which described them as constructive.

Frost said that although his preference was for a consensual way forward, “article 16 safeguards” were a legitimate part of the protocol. This reference to article 16 was markedly less aggressive than in Frost’s statements about the protocol until this week, which have routinely threatened to invoke it.

Britain and EU agree to intensify talks over Northern Ireland protocol

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EU warns of ‘serious consequences’ if UK deploys article 16

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‘Change in tone’ from Frost in fourth round of Brexit talks, says Sefcovic

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His tone changed in the House of Lords on Wednesday when he made clear that he wanted to give the negotiations more time, dropping the imminent threat of suspending the protocol.

For his part, Sefcovic intensified his strategy of focusing on the practical difficulties the protocol has created in Northern Ireland rather than entering into a debate about the principles that lie beneath it.

He has set up a series of “deep dives” for Northern Irish business groups next week to explore the detail of the EU’s proposals for simplifying the regime governing goods moving across the Irish Sea from Britain.

Pulling back

Frost’s change of tone may reflect a conclusion in Downing Street that the weeks before Christmas are not an ideal time to trigger article 16 and risk the retaliation from the EU that could follow.

It does not mean that Britain has abandoned the option of unilateral action over the protocol or that it is ready to agree a deal on the basis of Sefcovic’s proposals.

Boris Johnson's former adviser Dominic Cummings warned on Friday against triggering article 16, suggesting that the prime minister would not be capable of following through on it. He suggested instead that Frost should "partly stick to the deal, partly 'bend' it on the ground but without making a fuss" and wait until Johnson is gone and circumstances strengthen Britain's hand.

He said that if the protocol were to collapse, Britain should ensure that the Europeans got the blame.

"I think that most in Europe are happy to focus elsewhere provided No 10 does not force them to pay attention," he wrote in his Substack blog.

“If the deal is to fall apart, then it should be handled such that relevant audiences including the White House think it’s Brussels/Paris that are being unreasonable.”