• Logistical issues in the Northern Ireland Protocol disrupted life in Northern Ireland.
• Lord Frost is demanding a renegotiation of the Protocol and seeking to include elements already discarded by the EU.
• The EU’s Maroš Šefčovič must now defend the bloc’s interests while considering wider impacts.

Why is David Frost hostile towards Maroš Šefčovič?

Answer: He has called for the renegotiation of the Northern Ireland Protocol, but Šefčovič maintains that his demands are unworkable.

The UK government’s Brexit Minister Lord David Frost has clashed with European Commission Vice President Maroš Šefčovič by demanding the replacement of one of the most complex and sensitive components of Brexit: The Northern Ireland Protocol. Frost announced the need for change to the deal to allow goods to circulate more freely between Great Britain and Northern Ireland, saying the current rules impose too many barriers.

The difficulty lies with the sea border now present between Great Britain and Ireland which prevents the presence of a land border on the island, a key element of peace in the country enshrined in international law. Therefore, under the current deal, there exists a border between Northern Ireland from the rest of the UK. Delays at customs checks for pharmaceuticals and other goods have caused issues for businesses in the country.

The move to replace the Protocol is part of a serious escalation in the dispute about how Northern Ireland fits into Britain’s withdrawal from the bloc. There have been rumblings within the UK government since Prime Minister Boris Johnson signed the deal into effect less than two years ago, mostly from the Unionist government in Northern Ireland who feel marginalised by the agreement. The new deal proposed by Frost discards some elements from the deal and includes others that were outrightly rejected by the EU during negotiations. Šefčovič, who acts on behalf of the EU, has already ruled out many of these, stating they are far-reaching and unworkable. Tensions are now at their highest point since the settling of the original deal.

This tension is accompanied by a serious disintegration in British-Irish relations over the issue. Irish politicians openly disapprove of Frost’s actions; the Irish Foreign Minister Simon Coveney accused Britain of not wanting a deal at all. As an EU member state, Ireland enjoys full-fledged support for its interests, meaning the EU will defend the prevention of a land border. Frost is responding with force, accusing the EU of heavy-handedness and threatening to trigger Article 16, which would act as an emergency brake by allowing either side to unilaterally suspend part of the deal in an emergency. He claims Britain is within its right to do so now. This, however, would incur a serious escalation in the dispute.

What does Šefčovič want? 

Answer: To protect the integrity of the EU and its institutions in the face of Brexit.

Šefčovič’s mission is clear: to protect the status quo for the good of the relationship between Britain, Ireland, and the EU. The Northern Ireland Protocol allows Northern Ireland to remain in the EU’s Single Market, instead employing some custom checks at ports where goods enter from mainland Britain. This is the least complicated outcome for the EU and arguably for the UK as well.

The terms upon which the UK decided to withdraw from the EU required the redrawing of the Single Market’s regulatory border. The UK was therefore faced with a “border trilemma”, which required a choice between a land border, an Irish Sea border, or a border in the Celtic Sea. As both the UK and the EU committed to avoiding a “hard border” on the island of Ireland in order to protect the Belfast/Good Friday Agreement, this option was discarded. A Celtic Sea border would not only undermine Ireland’s place in the Single Market, but it would also be logistically impossible to police enough to prevent the need for customs checks. As a result of these difficulties, it was agreed that an Irish Sea border would be the best option.

For Šefčovič, the issue goes beyond that of Northern Ireland. While Unionists are unhappy about delays and a border which makes them feel less British, the UK government is taking the opportunity to criticise the European Court of Justice (ECJ). Northern Ireland’s presence in the Single Market means it comes under the jurisdiction of the ECJ. Naturally, this is a contentious point for a government who were willing to spend years negotiating a Brexit deal to reclaim their sovereignty.

The ECJ is a key EU institution whose function is essential to the idea of the Union itself, and so the EU will not allow a state to participate in the Single Market without its law reigning supreme. Šefčovič is undoubtedly aware of the sensitivity of any issue with the ECJ after Poland’s challenge to its jurisdiction in its own state, a topic which is now becoming politically trendy even in highly pro-EU countries like France. He wants to protect the integrity of the institution from these challenges.

What does Frost want?

Answer: To weaken the image of the EU to negotiate a tougher deal, which he hopes will please Brexit supporters back home.

Lord Frost’s speech on 12th October – tactically given the day before the EU Commission presented its plans to resolve the difficulties with the Protocol – was openly anti-EU and made his dissatisfaction with the bloc very clear. Frost is what’s known as a hard-line Brexiteer: a supporter of the move from the beginning whose aggressive negotiating tactics made him popular in the pro-Brexit government. His calls for change in the ECJ dispute could be a bargaining chip to trade for other concessions. Alternatively, it is designed to provoke a full-scale crisis that could lead to Prime Minister Boris Johnson suspending part of the Protocol, blaming the EU and stoking pro-Brexit sentiment at home. That would likely prompt retaliation from the EU and possibly a trade war with the bloc.

It appears likely that Frost was aware from the time of the original negotiation that problems would arise and a re-negotiation would be necessary. He had already mentioned using Article 16 several times. This, however, would only suppose a short-term solution. While there are issues with the Protocol, Frost’s criticism of the EU suggests these recent events are part of an overall disintegration in relations in the wake of Brexit and are only part of the problem for Frost. This is evident in his calls for change to the nature of the Protocol to that of an international treaty rather than a system of EU Law policed by the ECJ, a difficult task if Northern Ireland is to stay in the Single Market.

Ultimately, when it comes to British-EU relations post-Brexit, for the British it is about sovereignty, and Frost is leading the charge. After reviewing the EU’s plans to improve the issues with the Protocol, Frost appeared before MPs to acknowledge the bloc’s willingness to find a solution, but also to state that the amendments do not go far enough. The UK government has now set a winter deadline to reach a compromise.

What is Šefčovič doing?

Answer: Standing strong in the face of Frost’s challenge.

Šefčovič and the EU have indeed revised the terms of the Protocol, although without making any major concessions. After all, he had specifically rejected a UK demand, contained in its July command paper, for the jurisdiction of the European Court of Justice to be removed from Northern Ireland. Šefčovič maintains that the Single Market cannot function without the ECJ’s oversight, while emphasising the advantages gained by Northern Ireland as part of the market. This view is shared by other British analysts who highlight the UK government’s commitment to boosting Northern Ireland economically while insisting upon removing the economic advantage held by EU member states, particularly smaller ones.

The revisions to certain aspects of the Protocol attempt to ameliorate the difficulties with goods at the border between Northern Ireland and the rest of the UK. The ECJ, however, remains a sticking point. With the new deadline, the EU and UK will negotiate over the coming months to find common ground. Šefčovič has warned that he has no authority to renegotiate the Brexit deal. Given the two leaders’ current rhetoric, we can expect another long and tense round of negotiations.

Who is winning and what about you?

Answer: No clear winner has emerged as of yet, but Northern Ireland will become the collateral damage of these two powers.

Šefčovič’s adjustments to the Protocol should result in an improvement for Northern Irish businesses and citizens by reducing waiting times at customs checks as well as bureaucracy. A tangible improvement will likely appease the majority of Northern Irish citizens, including moderate Unionists. It will not, however, be enough for the Democratic Unionist Party (DUP)-led government, who side with Frost’s red line about the involvement of any EU Institution in British affairs. The main issue for the DUP is the sensitive implication that Northern Ireland is less British than the rest of the UK, an understandable sentiment provoked by the presence of a customs border within the state. Frost can therefore count on the DUP’s support throughout the upcoming negotiations.

Although these issues with the Protocol mostly affect Northern Ireland, Frost may be using them to leverage a harder Brexit and wreak havoc against the EU, something that will gain him support at home and is of personal satisfaction to him as a hard-line Brexiteer. Research shows that Northern Ireland – which generally lags behind the rest of the UK economically – would benefit immensely from participation in the Single Market. If the EU and UK cannot come to a reasonable agreement on this, it will be Northern Ireland who bears the brunt of the consequences, both economically and socially. It could also have disastrous effects for British-Irish relations in the future, which would have economic consequences for both. 

Similarly, the image of the EU is at stake if it cannot find a solution through diplomacy. The EU has been accused of deliberately complicating the deal out of spite for Brexit. Britain nonetheless remains an important player in Europe. As geopolitics become increasingly relevant and the world pivots toward Asia, Europe will need to establish unity if it wants to hold up against China or the USA. Without Britain, its position will be significantly weaker. With the rise of populism the integrity of the EU is being tested more than ever before. That said, Britain does not have the financial means nor the geopolitical capacity to hold a strong position without the rest of Europe. It is in everyone’s interest that the EU and Britain find a way to cooperate.