Brexit talks: What next as Lord Frost weighs Article 16 – how UK risks trade war

Paul Givan: Conditions to trigger Article 16 have already been met

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Lord Frost addressed crowds in Lisbon yesterday and called on the EU to make urgent changes to the Northern Ireland protocol. The EU Commission responded almost immediately, appearing prepared to accept plans for a red tape bonfire. But the path ahead is laden with several potential snags that mean Brexit is far from done.

What happens next?

Lord Frost’s speech intended to lay the onus on the EU to resolve issues with the Northern Ireland protocol, but the bloc responded with haste this morning.

The EU Commission has pledged to honour his various requests by strengthening relations with Northern Ireland, purging red tape and helping to resolve trade issues.

The ball has now rolled back into Lord Frost’s court, and he will want to address some of the subjects his counterparts left out.

One of the central requests in his speech yesterday was for an independent arbitrator to oversee ongoing trade talks.

The Court of Justice of the European Union (CJEU) is in charge at the moment and will likely remain so for the foreseeable future.

As such, courts oversight could succeed the sausage wars as the new point of conflict between negotiators.

Experts have drawn attention to EU arrangements with Switzerland that allow an independent body to take on disputes before EU judges get involved.

But Switzerland, although not a member of the EU or EEA, is in the single market, which MPs voted to leave in 2018.

Diplomats will have the opportunity to discuss where they go from here tomorrow when they come to London.

If ongoing friction continues, either party can trigger the “nuclear option”.

Otherwise known as Article 16, the provision baked into the Brexit agreement could decide where discussions go from here.

Will the Government trigger Article 16?

Article 16 has featured in discussions primarily on this side of the English Channel.

Lord Frost has threatened to wield the safeguarding mechanism that allows either the EU or the UK to take “unilateral” measures to preserve the sanctity of the Good Friday Agreement.

In UK hands, it would allow the Government to revoke the checks along the Irish Sea border.

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Lord Frost dangled the mechanism as “the only way forward” but stopped short of celebrating it.

He told meeting attendees yesterday that the UK would not go down that road “gratuitously or with any particular pleasure”.

Politicians on both sides of the channel will want to avoid the article where they can.

While some have marketed it as the ultimate solution to current issues, it would just kick off another process.

The protocol would remain and trigger its annexe 7 treaty clause.

Annexe 7 launches a chain of consultations that eventually aim to return to the parameters of the protocol.

The additional complication would prevent Lord Frost from undertaking his proposed “root and branch” renegotiation.

And negotiations include retaliation measures such as tariffs that could launch a potentially disastrous trade war.

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