David Frost, the UK’s Brexit minister, has said triggering article 16 to suspend post-Brexit arrangements for Northern Ireland is “very much on the table”, as he met his EU counterpart in Brussels.
After three weeks of talks over the Northern Ireland protocol, Lord Frost said time was running out, as EU sources also spoke of deep pessimism about the chances of a successful outcome.
“We hope to make some progress but honestly the gap between us is still quite significant, but let’s see where we can get to,” Frost said before a meeting with Maroš Šefčovič, the EU commissioner for Brexit. “We’re not going to trigger article 16 today, but article 16 is very much on the table and has been since July.”
He added: “Time is running out on these talks if we are to make progress … If we can reach an agreement, a consensual agreement, on the protocol that provides a sustainable solution then that’s the best way forward.”
Frost had set the EU a three-week deadline after the 12 October publication in Brussels of a plan to drastically reduce the level of checks on trade going from Great Britain into Northern Ireland.
It is widely expected, however, that any decision on article 16 will be made after the Cop26 climate talks in Glasgow, which are due to end on 12 November.
Frost said: “I’m not going to give any timescales or any hypotheticals. We are trying to reach an agreement and we’re working very hard and carry on trying. There’s a significant gap between us. If that gap narrows and the commission listens to what we have said in the command paper and looks at the situation in Northern Ireland, then maybe that will help us move things forward.”
Under the protocol, Northern Ireland in effect remains in the single market for goods, and the EU’s customs rulebook is enforced on goods entering from Britain and other non-EU countries.
Brussels has conceded that the implementation of these arrangements has created political disruption in Northern Ireland and it has committed to reducing the controls on trade from Britain.
Frost insists, however, that such remedies would not go far enough. The UK government is seeking to keep Northern Ireland within the single market but without a role for the European court of justice as arbiter of whether EU law is being followed.
Article 16 of the protocol allows either side to take unilateral “safeguard measures” if it causes “serious economic, societal or environmental difficulties”.
There has been speculation that the UK could use it to implement its vision for Northern Ireland, as outlined in a July command paper. However, the treaty only allows for “strictly necessary” actions “to remedy the situation”. There is ongoing debate in government at what this legally permits.
Should the UK trigger article 16, there will be a range of options available to the EU, including giving notice of terminating the trade and cooperation agreement that ensures tariff-free trade. But EU sources said it was unlikely that Brussels would jump to such a decision given the range of other options within the treaty to respond to the UK, including targeted tariffs following arbitration.