Despite the protocol forming part of an international treaty signed by the UK, Lord Frost said it was not “reasonable” to regard its text as the final word on arrangements for the border between Northern Ireland and the Republic.
In comments that will be seen as deeply ironic in the light of the government’s implementation of Brexit on the back of a 52/48 vote, the PM’s senior negotiator argued that the protocol was difficult to operate because it enjoyed only 50/50 support among the Northern Irish public.
He told the Northern Ireland Assembly that “a broader level of consent” was needed to make such fundamental changes work.
Giving evidence to Stormont’s Executive Office Committee, Lord Frost acknowledged that the deal that he negotiated and Mr Johnson agreed in 2019 has had a “chilling effect” on British exports to Northern Ireland and prompted a shift in supply chains towards the Republic of Ireland.
He said there was evidence that mainland pharmaceutical companies had either begun to withdraw from sales of medicines to Ulster or plan to do so by the end of the year.
Concerns about the operation of the protocol were universal among the province’s businesses, he told MLAs.
Lord Frost again blamed disruption on over-zealous EU implementation of the terms agreed in 2019, and suggested that the text could be amended or re-interpreted in order to improve the flow of trade between the British mainland and Northern Ireland.
“I don’t think it’s right to look at the protocol as a definitive text that was there in October 2019 and there’s nothing more to say,” he said. “It’s very clear, reading the text, that that’s not the case.”
As discussions with the EU remain stalled over Britain’s refusal to accept alignment on veterinary standards, Lord Frost repeated London’s threat to suspend the protocol by invoking Article 16.
“All options remain on the table”, he said, adding that the government will set out its position in a statement to parliament before summer recess begins on 22 July.
Under Article 16, the UK can take action if the protocol gives rise to “serious economic, societal or environmental difficulties” or “diversion of trade”, but risks triggering retaliatory tariffs from Brussels.
Lord Frost came under fire from nationalist members of the Executive Office Committee at Stormont, who told him that the UK government should implement the deal it had agreed.
“It’s your deal,” said the committee’s SDLP chair Colin McGrath. “If your deal is so shoddy, why did you negotiate it?”
And Sinn Fein’s Martina Anderson – an MEP at the time of the Brexit talks – told Lord Frost: “You were Britain’s chief negotiator for Brexit. Your eyes were wide open and your fingerprints are on every page of the protocol.
“The majority of people here in the North rejected Brexit and the majority of parties here in the Assembly, who represent the majority of people, rejected Brexit but support the protocol.
“You were the chief negotiator. You were not asleep. You knew there were going to be trade adjustments. The dogs in the street knew that there were going to be trade adjustments. Even the DUP Brexit cheerleaders knew there were going to be trade adjustments and they felt you threw them under a bus.”
Ms Anderson said that a recent poll had shown just 6 per cent in Northern Ireland trusted the UK government over the protocol.
But Lord Frost responded that another poll had found a 50/50 split in Northern Ireland over whether the protocol was “desirable”.
He said: “If you have a 50/50 division of opinion on something as fundamental as that, it makes it very hard to operate.
“That’s the situation we are in. The protocol depends on a broader level of consent if it is going to work.
“Therefore we’ve got to find a way of ensuring that we can get that consent, and that political problem seems to us to be at the core of the difficulties that we’re trying to solve.”
He blamed Theresa May’s administration for “infelicities” in the protocol that were currently causing disruption and tension in Northern Ireland.
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