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UK to trigger Article 16 if EU does not make concessions, says Frost

The British government will suspend parts of the Brexit deal covering trade with Northern Ireland if it does not get an expansive set of concessions from the EU, Lord David Frost said on Monday.

The UK’s Brexit minister struck a downbeat note as he addressed the Conservative party conference in Manchester, warning that Brussels was failing to grasp the scale of the changes needed to fix a deal that had bedevilled post-Brexit relations with the EU.

“I urge the EU to be ambitious. It’s no use tinkering around the edges. We need significant change,” he said.

The UK and Brussels have been locked in negotiations since last July over the so-called Northern Ireland protocol, the part of the Withdrawal Agreement which requires all goods going from the British mainland to Northern Ireland to follow EU customs rules and regulations.

Despite agreeing to the arrangement in October 2019, Frost has now declared the deal to be “unsustainable” and is asking for a fundamental rewrite of the protocol, including removing the oversight of the European Court of Justice.

The European Commission is working up a new set of proposals to ease some of the problems caused by deal, which diplomats expect will be put forward later this month.

However, Frost signalled that the UK had low expectations of Brussels’ package and was prepared to unilaterally suspend parts of the agreement using a mechanism in the protocol known as Article 16.

“We await a formal response from the EU to our proposals. But from what I hear I worry that we will not get one which enables the significant change we need,” he said, adding that he had sent legal texts to the Commission based on the solutions outlined by the UK in July.

Officials on both sides said negotiators remained a long way apart. In a closed-door meeting with MEPs last week, the EU’s Brexit commissioner Maros Sefcovic made it clear the bloc was open to “creative solutions” to the stand-off, but only within the legal framework of the existing deal.

A poster at the port of Larne in Northern Ireland protesting against the protocol © Charles McQuillan/Getty Images

Among the ideas are longer-term legislative solutions to help supplies of medicines and new efforts to facilitate trade in the area of customs and animal health in Northern Ireland. But UK aspirations to strip the European Court of Justice of its role were a non-starter, Brussels has insisted.

UK officials similarly said that London would not tolerate a foreign court overseeing an internal trade border in the Irish Sea. Instead, they want to an independent arbitration mechanism. “We’ve got to set a goal that trading with Belfast is the same as trading with Birmingham,” said one.

Once put forward, Brussels’ counterproposals are expected to lead to a set of intensive negotiations in late October or early November, officials said. Failure to reach agreement would likely lead to the triggering of Article 16, a clause that either side can invoke if they judge the protocol is causing “economic, societal or environmental difficulties”.

The UK said in July that the threshold for using Article 16 had already been reached, but is delaying its use in order to find solutions. The EU has for the same reason deferred legal action that it took earlier this year over the UK’s breaching of the terms of the protocol.

Once triggered, Article 16 would lead to further a set of negotiations and, if no deal were reached, potential legal and trade sanctions. EU officials said Brussels’ reaction to the UK invoking Article 16 would depend on whether London used it to address narrow and specific areas of concern, or took a wider approach and suspended Irish Sea border checks entirely.

If the UK went too far, there was a risk of both broader trade retaliation and diplomatic fallout, officials said.

France’s Europe minister Clément Beaune warned in an interview with the FT that invoking Article 16 could “kill the accord”, including elements of the EU-UK Trade and Cooperation Agreement. He added that Paris hoped the UK would not take that step.

France’s Europe minister Clément Beaune said Paris hoped the UK would not invoke Article 16 © Kenzo Tribouillard/AFP/Getty Images

“It would show in any case that [the UK] does not want to respect the agreements we have signed, that is to say the withdrawal agreement, and the trade and partnership agreement — and it would also be a big breach of trust, as well as a mistake for the stability of Ireland,” he said.

But London is under pressure from Northern Ireland’s Protestant unionist parties who have rejected the protocol as an attack on their community’s place within the UK and want it scrapped.

Sir Jeffrey Donaldson, leader of the Democratic Unionist Party, has threatened to collapse Northern Ireland’s power-sharing executive as soon as this month by pulling his ministers out unless the protocol goes.

Doug Beattie, the leader of the Ulster Unionist Party, told the FT that triggering Article 16 would not go far enough. “It may well address narrow issues within the protocol and begin a negotiation process but it is not a long-term solution,” he said.

Officials on both sides said that the next few months would be crucial in normalising relations between the EU and the UK which have been poisoned since January by the issue of the protocol.

Frost acknowledged that a deal was essential to restoring “friendly relations” with Brussels, adding: “But we cannot wait forever. Without an agreed solution soon, we will need to act, using the Article 16 safeguard mechanism.”


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