Northern Ireland protocol: What is David Frost’s next move?

Ireland and the EU shouldn’t panic. All options carry risks for London

Frost is in charge of negotiations, but the final call is Boris Johnson’s. File photograph:  Leon Neal/ AFP via Getty

Frost is in charge of negotiations, but the final call is Boris Johnson’s. File photograph: Leon Neal/ AFP via Getty

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Ireland’s summer holiday shivers are nothing compared to the political chill descending over the Northern Ireland protocol. As one EU diplomat puts it: “Trust is at zero... and there’s further to fall.” How much worse could things get in the autumn when a series of grace periods on checks on goods moving between Britain and Northern Ireland are due to end?

The UK government has called for “substantial changes” to the protocol; in practice, a fundamental renegotiation. That almost certainly won’t happen. Let’s also assume we don’t get an agreement in September to extend grace periods long enough to agree permanent arrangements which best meet the needs of Northern Ireland business and consumers.

Paul McGrade works for Lexington Communications. Previously, he worked at the UK foreign office, the European Commission and the UK cabinet office as an adviser on EU treaty negotiations

How might London play this situation tactically, and how should Dublin, EU capitals and Washington respond?

Four assumptions

Experience suggests we can make four assumptions about how David Frost will approach talks.

Firstly, he will ask for much more than the EU will ever concede. Secondly, he will try to look credible in threatening to act unilaterally if the EU doesn’t move far enough.

Thirdly, Frost – unlike his predecessor, Michael Gove – is prepared to use Northern Ireland as leverage to open up negotiations. The only way to force the EU towards substantial renegotiation is if the Northern Ireland Assembly votes to exit the protocol’s trading arrangements. The earliest that could happen is late 2024, but if the Assembly election next year returned an anti-protocol majority, the EU would be on notice that the fundamental question of where checks take place was back in play. If we take the UK government at face value, therefore, maximising the anti-protocol unionist vote next May is in their short-term interests.

Finally, Frost’s negotiating position has plenty of “fat”; the gap between initial asks and what Boris Johnson accepted in the end on the withdrawal agreement and the future trade deal was big. With the protocol, my guess is that the UK government would be happy with a de facto “standstill” – including grace periods – which would get them through to the next general election, probably in 2023.

Tactics

With that in mind, what tactical options will Frost be weighing up?

1. Extend grace periods unilaterally. Those could be open-ended, or running until, say, March 2022, to maximise the protocol issue in the NI Assembly election. The EU – if prepared to countenance extensions – might counter with rollover for a year, to take us past those Assembly elections. If the UK government’s real aim is a prolonged “standstill”, Frost will also be thinking about how to manage likely EU conditions around credible commitments to finally implement the protocol. That would be a big step down from the stated aim of fundamental renegotiation.

What really counts is domestic politics, in England, not Northern Ireland

2. Internal Market Bill 2.0. If the UK government is – or at least wants to look – serious about unilaterally rewriting the protocol, it probably needs new legislative powers. As with the original Internal Market Bill, this would serve a dual purpose: rallying Conservative backbenchers and Johnson’s wider electoral coalition; and showing the EU that London is prepared to play hard ball.

3. Trigger Article 16. This would be seen internationally as a sign that negotiations had ended. The UK could take just the initial step – formally notifying the EU (under Article 1 of Protocol Annex 7) that it is “considering” triggering Article 16, without actually doing so. Frost might couple this with some new deadline to pressurise the EU. But even this would raise the diplomatic temperature hugely, in Washington as well as in Brussels.

Final call

Frost is in charge of negotiations, but the final call is Boris Johnson’s. What will weigh with him? Again, experience suggests that he will drive the car to the edge, but won’t do a Thelma and Louise right off the cliff. He wants friction with Washington to be manageable, but a US trade deal – unlikely anyway this side of a UK election – probably isn’t much of a carrot for him. What really counts is domestic politics, in England, not Northern Ireland. In particular, avoiding any economic disruption in “Blue/Red Wall” seats in the midlands and north of England, big enough to affect his chances of winning most of them next time around.

Ireland and the EU shouldn’t panic, whichever option Frost goes for; all of them carry risks for London. Extended grace periods with clear signals about eventual implementation will only accelerate responsible business operations under the broad protocol terms. An Internal Market Bill almost certainly wouldn’t get past the House of Lords before the next UK general election. The NI Assembly elections are very likely to return a majority in favour of making the protocol work, rather than risk an intrusive land border. Triggering Article 16 is the biggest diplomatic risk of all, just ahead of COP26 and with Johnson seeking validation of “Global Britain”. It also allows the EU to retaliate – take “proportionate rebalancing measures” – immediately, without the need for arbitration.

Above all, EU leaders should consider whether they want to fight this out now. What is their “plan B” if London cannot be forced to implement the protocol fully this side of a UK general election? Would some form of “standstill” – in my view, London’s real aim – be so bad, if it came with some concrete acceptance that the protocol is, in large part, here to stay?

In that scenario, ongoing business adaptation would mean there would be very little, in commercial terms, left to fight about when the next UK government takes office.

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