Lord Frost might just be serious about rewriting the Northern Ireland protocol

Many have assumed that the UK’s attempt to tear up the treaty is a negotiating tactic, writes John Rentoul

Lord Frost, the Brexit minister, warns the EU against a ‘historic misjudgement’ (Reuters)

I had assumed that David Frost, the Brexit minister, was demanding the rewriting of the Northern Ireland protocol as a negotiating tactic. You can see how that might work. He demands new rules on sausages plus the removal of the European Court from its role in enforcing the protocol. The EU side offers a concession on sausages; the UK side agrees to drop the demand about the European Court. A sensible compromise, and both sides would be happy.

There is another possibility, however, which is that Lord Frost is entirely serious, not just about sausages, but about renegotiating part of a treaty to remove the role of the European Court.

For many people, this is a laughable idea, but I think there is a danger that two groups of people might indeed be guilty of a “historic misjudgement”, as Lord Frost puts it in his speech in Lisbon today. British Remainers and EU negotiators might regard Lord Frost asking to rewrite a treaty he himself negotiated just two years ago as ridiculous.

It certainly seems odd. In the Command Paper published in the summer, Lord Frost came as close as he could to saying that the UK government made a mistake in agreeing to a role for the European Court in the first place: “The UK ... only agreed to it in the protocol because of the very specific circumstances of that negotiation.”

In other words: we agreed to it only because we were desperate to get the deal done so that we could hold a general election and finally get Britain out of the EU. The wording comes close to admitting that Boris Johnson agreed to something he didn’t want in the hope that he could sort it out after Brexit. Now it is after Brexit, and he wants to sort it out.

So the EU side would be entitled to say, as they have said, that the UK has to abide by a treaty it agreed and ratified. But there are other reasons for thinking that the treaty should, perhaps, be rewritten.

The most important of these is the politics of Northern Ireland itself. The protocol has become a bugbear for unionists, which, given that it includes provisions that require the consent of the Northern Irish assembly, is a genuine problem.

This is complicated by point-scoring all round. The Democratic Unionist Party objects to the protocol because it puts a border in the Irish Sea between Northern Ireland and the rest of the UK. The point scorers point out that the party should have agreed to Theresa May’s compromise when it had the chance. Not that the DUP alone would have been able to save it, but at least its position now would be more credible. Instead, the DUP allowed itself to be led up the garden path by Johnson, who insisted that his Brexit deal would magically require a border neither in Ireland nor in the Irish Sea.

Just because the DUP’s position makes no sense, however, doesn’t mean the protocol is an imaginary problem. Some people who might rejoice in the DUP’s collapse should be careful what they wish for, because although it has led to the resurgence of the Ulster Unionist Party, the acceptable face of unionism once led by David Trimble, it has also led to the resurgence of other unionist groups that are closer to the loyalist paramilitaries of the bad old days.

It ought to be obvious that, if the protocol is to survive, it will need something drastic to happen to it if it is to have a chance of gaining the approval of unionist politicians. Sir Jeffrey Donaldson, the new DUP leader, insists that the role of the European Court has been one of his central objections to it since he took over. This may seem a somewhat synthetic complaint, designed to appeal to the DUP’s Euroscepticism, and no one has explained what practical effect the European Court’s role has had or is likely to have that prompts such strong feelings. Lord Frost certainly didn’t mention any practical examples in his speech.

But if rewriting the protocol in this way helps it to secure the consent of the people of Northern Ireland, then it should at least be considered. It may be satisfying to EU partisans to make fun of Johnson and Frost for wanting to tear up an agreement they only recently negotiated, but if the protocol cannot survive then it is no use to anyone.

Some observers have suggested that the demand to carve out the European Court must be a negotiating ploy because it is so unreasonable, and that the EU side could never possibly agree to it. This is presumably on the grounds that the EU internal market, of which Northern Ireland is still a part for some purposes, has to be governed by EU law. But that doesn’t deal with the problem on the ground in Northern Ireland.

There is no credible alternative to the protocol, for those who want the post-Brexit economy of Northern Ireland to work for the people who live there. That means the unionists have to be brought on board. As Lord Frost says in his speech: “Without new arrangements in this area, the protocol will never have the support it needs to survive.”

Just because the EU side finds Lord Frost irritating doesn’t rule out the possibility that he might have a point.