The past week’s tactics by David Frost, the UK’s Brexit negotiator, appear to have caused a slight loss of perspective among his opponents and critics.
The fact that Frost is tearing up his own deal is a redundant complaint. The protocol is being renegotiated, as Brussels has conceded by offering substantial changes. European Commission vice-president Maros Sefcovic has underscored the point by saying this offer is not made on a "take or leave it" basis.
Frost claims to be negotiating with regard to unionists, whose parties do not hold a majority in Northern Ireland. He says the Belfast Agreement justifies requiring unionist consent. However, the goal of mitigating the protocol is shared by everyone. Sinn Féin, the SDLP and Alliance, who last year demanded “rigorous implementation”, now welcome mitigations. They know keeping food and medicines flowing has required EU single market access and sea border grace periods – the real “best of both worlds”.
The standard explanation for why the EU cannot budge is that Northern Ireland remains inside the single market, creating a unique situation only the ECJ can oversee
There seems to be great annoyance that Frost rejected Sefcovic’s proposals as inadequate before they were published, yet no annoyance that Sefcovic spent a week promoting them before they were published. In no negotiation can one side give the other a clear run to portray themselves as generous beyond criticism.
Minister for Foreign Affairs Simon Coveney accused Frost of creating a new "red line" by demanding the European Court of Justice (ECJ) lose its protocol oversight role.
This is simply mistaken. London and both main unionist parties have been raising this issue all year. Everyone has known since the start of this summer it would be the sticking point in the current round of talks.
The EU has conceded the court’s role is a legitimate question by offering new arrangements on democratic accountability in Northern Ireland – a point connected to the court’s jurisdiction, as long noted by the UK, unionists and other observers.
Coveney appeared upset by the very concept of a red line, even while pointing out the EU has also made a red line on the ECJ keeping its role. Of course, it is routine for both sides to insist at the outset of a negotiation that their sticking points cannot budge.
The standard explanation for why the EU cannot budge is that Northern Ireland remains inside the single market, creating a unique situation only the ECJ can oversee.
Norway, Iceland and Lichtenstein, all outside the EU, are inside the single market via a treaty with its own court. This treaty covers almost every aspect of the single market, while the Northern Ireland protocol is largely restricted to goods and state aid.
Mutterings of an imminent trade war are as ludicrous as Frost's threat to trigger Article 16, which actually would permit the EU to retaliate over the protocol
The landing zone for a new deal on protocol oversight is clear and wide, with ample precedent. Most trade deals create their own courts, although the EU will often propose the ECJ as it negotiates. Brussels insisted on this recently with Switzerland, causing the Swiss to throw the whole deal out. Brussels also demanded ECJ oversight for its post-Brexit, free trade deal with the UK, before settling for the "Ukraine model".
Under this model, disputes are addressed through the deal’s bilateral committee, then referred up to an independent tribunal if no resolution is agreed. Only if a point of EU law is raised at this stage can the ECJ give a binding opinion, and on that point alone. The tribunal then rules on a remedy. If this sounds like a roundabout way of keeping the EU’s jurisdiction at arm’s length, so much the better for Northern Ireland.
The protocol is not part of the UK-EU free trade agreement. It falls under the separate withdrawal agreement, which could be seen as creating a unique distinction with no precedent to exclude the ECJ.
That distinction is trashed by threats or warnings of a “trade war” from the EU, or conspiracy theories of the UK wanting a trade war as a distraction from Brexit problems.
The trade deal permits no such retaliation; it can only examine disputes and propose remedies within its remit. Each stage of the process has to be given three months, with up to a year, before a ruling. Mutterings of an imminent trade war are as ludicrous as Frost’s threat to trigger Article 16, which actually would permit the EU to retaliate over the protocol.
In short, we are in an early talks period of bluster. Frost wants a “new protocol” that will still be a protocol, cleaving Northern Ireland from Britain with only a fig-leaf of accountability to cover unionist embarrassment. The lower the sea border, the more durable this cleavage will be.
Frost is not beyond criticism or guaranteed a new deal. His critics include British remainers and Conservative MPs. But the Irish fury he provokes seems aggravated by a particular cognitive dissonance. It is a nationalist article of faith that London will always betray unionism, so why is it taking unionism’s side?
Perhaps unionists just have more practice in understanding how both these things can be true.