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Frost repeats threat to trigger article 16 but says agreement is possible | Brexit


The Brexit minister, David Frost, has underlined the UK’s threat to suspend its deal with the EU, while saying that talks with Brussels to avoid a possible descent into a mutual trade war over the Northern Ireland protocol could yet end in an agreement.

Making a statement to the House of Lords, Lord Frost gave no new details of the government’s plans but did offer some bellicose words for the EU, which has threatened retaliation if the UK triggers article 16 to suspend the protocol.

“I gently suggest that our European friends stay calm and keep things in proportion,” said Frost, the Cabinet Office minister whose brief covers post-Brexit arrangements. “They might remind themselves that no government and no country has a greater ability in stability and security in Northern Ireland and the Belfast Good Friday agreement than this government.”

If the EU did retaliate with new trade barriers should the UK invoke article 16 and suspend the Northern Ireland protocol, Frost said, “that is, of course, a matter for them” – but indicated the UK would then respond in turn.

He said: “At that point, of course, we would be entitled to come to our own judgments about how much value we could attach to their commitments supporting the peace process and the best interests of the people of Northern Ireland, as against protecting their own interests.”

In Brussels, Frost’s EU counterpart, Maroš Šefčovič, gave a downbeat assessment of the talks with the UK during a meeting with diplomats representing the 27 member states, but did not outline any plans for retaliation in the event of article 16 being triggered.


What is article 16?


Article 16 is a clause in the Northern Ireland protocol, one of the key elements in the withdrawal agreement, which legally cemented the UK’s departure from the EU in January 2020. It allows either side to take steps, or “safeguards” in treaty-speak, if the protocol leads to “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”.

The party triggering it must prove that the protocol has given rise to “serious economic, societal or environmental” difficulties. The “safeguards” have not been legally defined but they must be “appropriate” to the damage caused and are likely to include the semi-permanent suspension of checks on goods flowing from Great Britain to Northern Ireland.

The invoking of article 16 would not immediately have a huge impact on the ground. This is because many of the checks have already been unilaterally suspended by the UK and the article 16 process itself triggers a formal dispute process that requires both sides to go into talks to resolve the dispute.

Lisa O’Carroll Brexit correspondent

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One source said Šefčovič instead reiterated his hope that there could still be a successful outcome. “[There was] some discussion that the EU must be ready in the case of article 16 being triggered, but no discussion on any potential options,” said a source.

Frost has been holding a rolling series of talks with Šefčovič and told peers they would meet again on Friday.

Frost said: “The aim has been to assess whether it’s possible to close the substantial gap between our positions and secure a consensual, negotiated resolution. So far that has not been possible. This is at least in part because the commission’s proposals would not do enough to make the protocol sustainable for the future, or even indeed deliver what they have claimed.”

He added: “In my view this process of negotiations has not reached its end. Although we have been talking for nearly four weeks, there remain possibilities that the talks have not yet seriously examined, including many approaches that have been suggested by the UK.

“So there is more to do, and I will certainly not give up on this process unless and until it is abundantly clear that nothing more can be done. We are certainly not at that point yet.”

Frost told the Lords that if it became clear no agreement could be reached, “the article 16 safeguards will be our only option”. He added: “We have been abundantly clear about this since July, when we made clear that the test for using article 16 had been already passed. Nothing that has happened since has changed that.”

Speaking earlier on Wednesday, the Irish deputy prime minister, Leo Varadkar, stressed that retaliatory action from the EU would be expected if the UK activated article 16, thus suspending checks on goods moving from Great Britain to Northern Ireland.

Varadkar said: “I think that would be a big mistake. The uncertainty that was created by Brexit went on for years. I’d hate us to be talking again about a no-deal Brexit or a cliff edge, or any of those terms that we’d forgotten and almost stopped using.”

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