Martina Anderson challenges David Frost on the Brexit backstop - ‘Your fingerprints are all over the Protocol’

Britain’s Chief Negotiator for Exiting the European Union prior to being appointed Minister of State at the Cabinet Office in March of this year, appeared before the Executive Office Committee on Friday.

He was in Belfast to brief the Stormont Executive Office Committee on the current and future workings of the Protocol During the briefing the Sinn Féin MLA suggested to Mr. Frost that he was partly responsible for the Protocol which had been deliberately negotiated in order to prevent the establishment of a hard border in Ireland.

“You were Britain’s chief negotiator for Brexit. Your eyes were wide open and your fingerprints are on every page of the Protocol - 63 pages of black and white,” she said.

She pointed out that the Protocol was only necessitated by Britain’s decision to leave not only the European Union but the European single market and customs union as well.

This particularly hard form of Brexit had been against the wishes of the majority in the north, said Ms. Anderson.

“You know that the people here in the north rejected Brexit, the majority of the people, and you also know that the majority of the parties here in this Assembly that represent the majority of the people out there, in nine separate debates here, rejected Brexit but support the Protocol,” she said.

The Foyle MLA, in what appears to have been her last contribution at Stormont as an MLA, argued that the north was well-placed to take advantage of its de facto twin membership of both the EU Single Market and the UK customs territory which it enjoys as a consequence of the Protocol.

“Do you not accept that the Protocol gives the north access to a single market cost-free and that the people here in the north that rejected Brexit want to see the all-Ireland economy, things that you referred to, the Good Friday Agreement, upheld in all of its parts?”

The Derry MLA expressed concern over the British governmen’s signals that it could row back on some of the Protocol’s provisions.

“It just seems to me that you are talking about now, balance, when surely someone who had their fingerprints on every single page of the Protocol, you were the chief negotiator, you were not asleep at the wheel.”

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She said that a majority of people in the north realised that Brexit was going to lead to trade disruption and voted accordingly.

“You knew that there were going to be trade adjustments, the dogs in the street knew there were going to be trade adjustments, even the DUP, who supported you throughout this Brexit, cheerleaders for Brexit, their reaction to what happened, they knew there was going to be trade adjustments and they felt you threw them under a bus.”

Mr. Frost said he agreed with some of Ms. Anderson’s comments but he could not agree with all of them.

“You are absolutely right. I was the chief negotiator both in 2019 and 2020 and we agreed the Protocol as the best option in a very complex situation. We knew that it was unusual in its construct - notably by applying EU laws without any normal democratic scrutiny and that’s why we had to put the consent mechanism in to ensure that that was the case.”

The Brexit minister said that when the Protocol was agreed it was understood that some of its provisions would explicitly require interpretation and negotiation at a later date.

The functioning of the boundary between Great Britain and the north depended on those negotiations, he said.

“It’s not reasonable to interpret it as a document which simply requires an EU external border to be established and the fact that that is what’s happening is causing many of the core problems at the moment.”

Mr. Frost said the potential for problems was recognised in Article 16 of the Protocol. This allows the EU or the UK to put safeguards in place if the Protocol leads to a diversion of trade or to serious economic, societal or environmental difficulties that are liable to persist.

“I think the fact that trade diversion was a risk, you are right to say that, that’s exactly why Article 16 is there and why trade diversion is highlighted as one of the possibilities which justifies the use of Article 16. So the Protocol, it’s a delicate balance. It has to be read in total. It’s very unusual and rests on sort of complex democratic foundations and a lot of it remains to be worked out. I think the core of the problem is that for various reasons it’s not working out in the way that it should work if it is to achieve its purpose. That’s why we need to carry on the process of finding a balance so that it does achieve its purpose. I think that’s the core of the issue here.”

Ms. Anderson replied: “You’ll forgive me for believing the reason why it isn’t working out is because you the British government are not implementing the Protocol in full.”

She said there was little faith in the British Government fulfilling its obligations.

“For those of us who come from the north of Ireland, the republican/nationalist community, we believe the next agreement that you honour in full will be your first, so there is a lot of scepticism in relation to some of the things that you are saying.”

She asked if Mr. Frost accepted the Protocol does not infringe the constitution of the UK.

He replied: “It is clear on the face of the Protocol that nothing in the Protocol affects the territorial integrity of the UK. It is clear about NI’s place in the customs union. It’s clear about the place of NI in the UK’s internal market and that’s fundamental. It reflects the fundamental state powers of the UK. Nothing in the Protocol affects that. That’s clear.”

However, Mr. Frost referred to perceptions and identity issues among unionists.

“Personally I would distinguish that from what we perceive...as say, the high levels of unease in significant parts of NI, not only across broad unionism but possibly more than that, about the way the Protocol is working out and that has consequences for broader senses of identity and the relationship between NI and GB. I don’t think that is necessarily a formal constitutional thing but it is a real thing.”