The EU is partly responsible for the Brexit minister David Frost’s aggressive negotiation tactics on the Northern Ireland protocol, Theresa May’s former special adviser on Europe has said. Raoul Ruparel said Brussels’ refusal to give May concessions on the protocol, only to subsequently agree a deal with Boris Johnson, “feeds the perception” in London that the hardline approach was the only one that would pay off. For this reason he believes Lord Frost will carry out his repeated threat to trigger article 16, the controversial safeguard clause allowing either side to unilaterally suspend the application of the agreement – even if the consequences mean already damaged UK-EU relations take a further dive. “Whether you agree with him or not, I think that he, and to some extent the prime minister and others, think that playing hardball … has proven to be effective and is the only way to really get them to sit up,” said Ruparel, a respected former adviser now working for Deloitte.
“If you’re looking at it from his perspective … it has to be a credible threat and [he must] be willing to follow through on it.” Frost has warned the EU on several occasions that the UK believes the conditions have been met to suspend part of the protocol in an effort to get the EU to renegotiate part of it. Earlier this month, the European Commission vice-president, Maroš Šefčovič, warned that a renegotiation would merely lead to more instability for businesses and communities – which landed badly in Downing Street. Two days later, Frost waded in again, hardening the language contained in the threatbefore saying the EU would be making a “significant mistake” if it did not take the UK’s demands seriously. The UK’s tough talk approach is mystifying for some. The German ambassador to the UK, Andreas Michaelis, tweeted on Thursday that it “seems we are entering a new phase with regard to the Northern Ireland protocol”. He added: “Just as the EU becomes more pragmatic and understanding, the UK adopts a less flexible approach.” The Conservative MP Roger Gale complained at a UK trade and business commission conference on Thursday that Frost seemed to be “negotiating by megaphone”, questioning what the effect of such public criticism would be. Sam Lowe, a senior research fellow at the Centre for European Reform, said he was baffled as to why people in the government thought they were winning concessions through hardball tactics. “I find that a really fascinating argument because I know that trade and cooperation agreement quite well, and the UK did not get much of what it wanted at all,” he said He added: “Yes, it got rid of the references to the court of justice, but then in terms of the offensive interests of the UK: the UK wanted more expansive rules of origin, better provisions on mutual recognition of professional qualifications, a deeper relationship when it came to the mutual recognition of products; the UK didn’t get any of that.” Ruparel suggested the further strain on UK-EU relations after invoking article 16 may be thought of as irrelevant by Frost. He said: “He may think: what’s the point in having better relations if they [the EU] don’t actually allow us to have these conversations and achieve anything? “If it’s just better relations in of themselves and you’re not getting a better deal or these concerns are not being, he may be thinking then what’s the use?” Article 16 explained How is article 16 triggered? The UK would have to give the EU one month’s notice that it was triggering the clause, which can be invoked by either side in the event the protocol leads to “serious economical, societal or environmental difficulties that are liable to persist, or to diversion of trade”. The UK would also specify what safeguard measures it would take, but article 16 specifies that these are “restricted with regard to their scope and duration”, so don’t expect an immediate trade war. What are the safeguards likely to be? Checks on goods crossing the Irish Sea into Northern Ireland from Great Britain could be unilaterally suspended indefinitely. But it could be worse. Remember when the EU threatened to trigger article 16 during the vaccine wars? What came as a shock to many commentators was the fact that measures in the Brexit protocol designed to protect peace in Northern Ireland could be deployed in a completely different theatre of war. How would the EU respond? Initially in a legal fashion, arguing that the test to trigger article 16 had not been met, or with a counter-action based on allegations that the UK had breached the terms of the protocol. As the thinktank UK in a Changing Europe explains: “Article 16 does not provide any detail on what constitutes a ‘serious’ impact or what is meant by ‘diversion of trade’.” So a field day for lawyers. Can the UK suspend the protocol? No. The agreement calls on the UK and the EU to immediately enter talks through the UK-EU joint committee with a view to finding “a commonly acceptable solution” in the event of article 16 being triggered. So they just go back to talks? Although the agreement limits the scope of “safeguard measures”, the fact that the EU considered using article 16 to secure Covid-19 vaccine supplies shows that cross-retaliatory measures and trade wars are not beyond the bounds of possibility. What would a trade war look like? It would be tactical. Lowe at the Centre for European Reform recalls how Donald Trump used safeguarding measures to put a tariff on aluminium and steel. The EU’s reaction was targeted, applying a massive rise to 56% in the tariff on Harley-Davidson bikes imported from the US.