Brexit: Lord Frost proposes ‘entirely new’ NI protocol

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Image source, PA MediaImage caption, Lord Frost warned the UK could still trigger Article 16 if the EU did not agree on changes to the existing protocol

Brexit Minister Lord Frost has proposed plans for an entirely new protocol to replace the existing Northern Ireland Protocol.

In a speech to diplomats in Portugal on Tuesday, he described his new legal text as "a better way forward".

The protocol is the special Brexit deal agreed for Northern Ireland to prevent a hard border on the island of Ireland.

Unionists argue it undermines Northern Ireland's constitutional position in the UK and creates a trade barrier.

In a plea to the European Union to allow for "significant change" to post-Brexit rules governing trade with Northern Ireland, Lord Frost said his proposed text would support the Good Friday Agreement.

He said it was forward-looking, improved on the current "excessively rigid" protocol, and would allow the EU and UK to "get back to normal" by removing "the poison" from their relationship.

  • What is the Northern Ireland Protocol?
  • Why are there tensions over the NI Brexit deal?
  • Why is there a Brexit row over a European court?

With the EU expected to out forward proposals on Wednesday to solve the standoff over part of the Brexit divorce deal, Lord Frost again warned Brussels London could unilaterally waive some of the terms of its agreement if the bloc failed to budge.

"We have a short, but real, opportunity to put in place a new arrangement, to defuse the political crisis that is brewing, both in Northern Ireland and between us," Lord Frost said.

Lord Frost urged the European Union to look carefully at the UK's new legal text, and said the existing protocol could not survive, as it did not have support right across Northern Ireland.

He also warned that the UK could still trigger Article 16 – which allows either side to effectively override large parts of the agreement – if the EU and UK could not agree on changes to the existing protocol.

"It is this Government, the UK Government, that governs Northern Ireland as it does the rest of the UK," said Lord Frost.

"Northern Ireland is not EU territory. It is our responsibility to safeguard peace and prosperity and that may include using Article 16 if necessary.

"We would not go down this route gratuitously or with any particular pleasure but it is our fundamental responsibility to safeguard peace and prosperity in Northern Ireland and that is why we cannot rest until this situation is addressed".

There are two schools of thought about how this latest negotiation is shaping up.

The first is that Lord Frost's hard line on the ECJ is standard pre-negotiation tactics, aimed at grinding out another concession or two.

After all the Brexit process has always delivered a deal, even at times when it seemed improbable.

There is another view, hinted at by Simon Coveney, that maybe the UK doesn't want a deal unless it's total victory.

Under that scenario the UK would go through the motions before triggering Article 16.

It would use this to gut the protocol while calculating that the EU's ability to retaliate is limited or or at least would take a long time to amount to anything.

We should find out which view is right by the end of this year.

The Brexit minister said there was a "widespread feeling in the UK that the EU did try to use Northern Ireland to encourage UK political forces to reverse the referendum results or at least keep us closely aligned with EU".

"Moreover, that the protocol represents a moment of EU overreach when the UK's negotiating hand was tied, and therefore cannot reasonably last in its current form," he added.

UK Prime Minister Boris Johnson signed up to the protocol as part of his Brexit agreement in 2020, but has since argued it was agreed in haste and was no longer working for the people of Northern Ireland.

The EU has repeatedly said it would not renegotiate the protocol, criticising the UK for reneging on an agreement that both sides signed in good faith.

More instability for Northern Ireland?

The UK government also wants to reverse its previous agreement on the oversight role of the European Court of Justice (ECJ), which is the EU's highest court.

Lord Frost said his new text proposed reliance on "international arbitration instead of a system of EU law ultimately policed in the court of one of the parties, the European Court of Justice".

Image source, ReutersImage caption, Sir Jeffrey Donaldson has threatened to pull his party out of Stormont

Sir Jeffrey Donaldson, the leader of the Democratic Unionist Party (DUP) – Northern Ireland's largest unionist party – said if the current protocol was not replaced Northern Ireland will be exposed to "further harm and instability".

"We need a long-term solution which will then allow us all to plan and get back to focusing on fixing our public services rather debating the Protocol," he said.

The DUP leader has previously warned his party may quit Stormont if its demands over the Northern Ireland Protocol are not met.

A layer of delusion?

Ulster Unionist MLA Steve Aiken said it was "self-evident" the existing protocol was not working.

"Anyone who has a grasp of the provisions of the Belfast (Good Friday) Agreement will note that the principle of consent is fundamental and that at the very least the protocol does not have the consent of the Unionist and pro-Union population".

He said the party would consider the UK government's legal text and the EU proposals due on Wednesday.

These will focus on easing practical problems, rather than changing oversight arrangements.

But Alliance deputy leader Stephen Farry MP said the UK government was more interested in continued confrontation than seeking solutions over the protocol, adding that Lord Frost had "chosen to enter into another layer of delusion".

"Short of the UK rejoining the Customs Union and Single Market, there is no alternative than for the UK to work with the EU in a spirit of partnership to achieve as many mitigations and flexibilities as possible."

SDLP MLA Matthew O'Toole said the remarks made by Lord Frost represented a "deliberate distortion of facts and contempt for people here".

"It is a fact that Lord Frost negotiated the protocol, agreed to its terms and backed Boris Johnson's campaign to sell it during the last general election," he said.

"To suggest now that he did not support it is an industrious piece of dissembling."

Traditional Unionist Voice leader Jim Allister said: "If, as Lord Frost says, it is the UK that governs Northern Ireland, then, there must be an end to the European Union's writ in this part of the United Kingdom.

"Put simply, it requires an end to the Protocol in all its parts."

I look forward to detailed proposals tomorrow from @MarosSefcovic. It follows months of hard work, careful listening across Northern Ireland & will deliver practical solutions to make the Protocol work better.
I hope U.K. Gov is serious about moving on in partnership. #Brexit

— Simon Coveney (@simoncoveney) October 12, 2021
The BBC is not responsible for the content of external sites.View original tweet on Twitter

Irish Foreign Minister Simon Coveney said he hoped the UK government was "serious about moving on in partnership".

He said Wednesday's EU proposals "will deliver practical solutions to make the Protocol work better".

On Monday, Mr Coveney accused the UK of repeatedly dismissing EU proposals for the protocol ahead of their publication.

Mr Coveney told RTÉ's Morning Ireland programme that the UK's dismissals were now "more serious", given the comprehensive compromise proposals the EU is bringing forward.

"Each time the EU comes forward with new ideas, new proposals to try to solve problems, they are dismissed before they are released and that is happening again this week," Mr Coveney said.

He said dismissals were being seen across the EU as "the same pattern, over and over again" by the UK.

Mr Coveney has previously warned UK demands on the Northern Ireland Protocol could cause "a breakdown in relations" with the EU.

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