Britain’s demand on NI protocol is audacious and certain to be rejected

Analysis: Johnson hopes taking Article 16 threat away will create space for negotiation

Boris Johnson is determined to eliminate much of the friction caused by the protocol without agreeing to arrangements such as a Swiss-style veterinary agreement. File photograph: Jessica Taylor/UK Parliament/AFP via Getty Images

Boris Johnson is determined to eliminate much of the friction caused by the protocol without agreeing to arrangements such as a Swiss-style veterinary agreement. File photograph: Jessica Taylor/UK Parliament/AFP via Getty Images

 

Britain’s demand that the European Union should rewrite parts of the withdrawal agreement they signed off on last year is dramatic, audacious and certain to be rejected. But it may not have been the most significant element of Brexit minister David Frost’s statement on Wednesday outlining his government’s new approach to the Northern Ireland protocol.

There was speculation ahead of the statement that Frost would invoke Article 16, which allows either side to unilaterally suspend parts of the protocol. He said the disruption to trade, the economy and society in Northern Ireland was enough to satisfy the conditions for doing so.

But he said that now was not the time for such a move and Whitehall sources say there is no longer any appetite in government for unilateral action. The protocol demands that as soon as either party considers triggering Article 16 they must inform the other but Britain will not be sending any such formal message to Brussels.

Frost called for a standstill period during which current arrangements, including grace periods postponing some checks on goods, would be frozen and said the EU should pause its legal proceedings against Britain for earlier breaches of the agreement.

The three elements of Britain’s proposal – eliminating most checks and certification requirements on goods made in Great Britain; introducing a dual regulation system for goods circulating in Northern Ireland; and removing the enforcement role of the European courts – appear to require changes to the text of the protocol.

British officials know that the EU will not agree to remove from its own institutions an oversight role over what is effectively the running of the European single market. But Boris Johnson is determined to eliminate much of the friction caused by the protocol without agreeing to arrangements such as a Swiss-style veterinary agreement that would require Britain to align dynamically with EU rules.

He hopes that, by taking the threat of Article 16 off the table and agreeing a standstill period that would require the EU to extend grace periods due to end on September 30th, he will create the space for negotiation. Frost avoided using the word renegotiation and Whitehall sources stress that the command paper published on Wednesday accepts the framework of the protocol and that all checks must be conducted in the Irish Sea rather than on or near the Border (or between Ireland and the rest of the EU).

The problem for Britain is that the EU has ruled out reopening the text of the agreement and European leaders have reason to doubt that Johnson will adhere to any new deal he negotiates. The withdrawal agreement identifies the joint committee co-chaired by Frost and Maros Sefcovic as the forum for resolving differences over the protocol but Johnson will want more political engagement from EU capitals.

There will be no substantive discussion of the British proposals until September and the first issue for the EU is whether to agree to a standstill period. If reopening the text of the agreement is out of the question, could Britain and the EU agree an interpretive instrument that would allow the protocol to be interpreted in a way that satisfies British demands?

If not, Johnson will have to choose between backing down or unilaterally extending the status quo and risking retaliation from Europe, or just a continuation of the low-level friction that is impeding a more fruitful relationship with his neighbours.

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