Frost readies for fresh challenge to rewrite hated Brexit deal with new team brought in
LORD Frost is seeking new legal advisers as he prepares a fresh challenge to the Northern Ireland Protocol, a key bone of contention between Britain and the EU.
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The Government is drawing up a new strategy in a bid to secure changes to the controversial post-Brexit trading arrangements, which critics, mainly in the Unionist community, claim has resulted in a border down the Irish Sea. The latest news will prompt many to speculate that Prime Minister Boris Johnson's Government is planning to trigger Article 16 to force a wideranging rewrite of the mechanism.
Insiders have told the Financial Times the Government is looking for legal experts who can help Suella Braverman, the UK attorney-general, strengthen its case.
The Government has acted as a result of concerns that current external advisers would refuse to back the push to use Article 16 as a means to rewrite the deal.
One said: “They want to leave Braverman free to opine without there being any conflicting advice out there.”
Downing Street insisted it was “untrue” to suggest that Lord Frost was dispensing with the services of existing legal advisers.
A spokesman said: “It is normal practice to commission legal advice from a wide range of sources on matters of this significance.”
The Protocol, intended to prevent a hard border on the island of Ireland requires Northern Ireland to comply with EU rules for goods, effectively keeping it in the Single Market, creating a trade border in the Irish Sea.
The arrangement, negotiated alongside the Withdrawal Agreement in 2019, contains provisions for either side to initiate unilateral “safeguard measures” if the Protocol causes “serious economic, societal or environmental difficulties”.
However, these must be kept to what is “strictly necessary to remedy the situation”.
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In July, Frost outlined plans to rewrite the deal, in the Government's Command Paper on the subject.
At the time, he argued the Protocol was “not sustainable”, arguing it had caused too much economic and societal disruption in the UK.
Talks are underway in Brussels in an attempt to resolve differences over the dea.
However, Prime Minister Boris Johnson has warned the conditions to trigger Article 16 have already been met.
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Indeed, many Brexiteers believe the Government should have done so long ago.
Speaking about the latest developments, James Webber, a partner at law firm Shearman & Sterling, said: “It makes a lot of sense to go out and get views from a range of public international lawyers.
"The Government naturally will want to structure any use of Article 16 to be as robust as possible before a future arbitration panel."
Other legal experts suggested if Article 16 was used in a bid to effect a fundamental reset of the Protocol, as opposed to attempting to correct limited and identifiable defects, it could weaken the Government's case.
George Peretz QC, a public and trade law barrister at Monckton Chambers, said: “It would make no sense for parties to agree to a provision that allowed either of them to escape key obligations in certain circumstances if they included things that were very likely or certain to happen."
Meanwhile Sir Jonathan Jones, the former head of the UK government’s legal department who resigned in protest last year over the Government's admission that it was planning to breach international law in relation to the Protocol, said: “It’s a very bad sign if any client has to start shopping around for advice because they don’t like the advice they’re already consistently being given.
"It’s not the best way to produce authoritative, accurate legal advice."
Speaking last week, one MP said Lord Frost was confident in the way the Government was dealing with the EU.
They said: "The message was: trust us. He was saying please keep your head down on the issue and don't interfere, arguing they did Brexit so they know what they're doing.
"He pointed out that the Irish are in a difficult position, as are the French and the Germans don't have a government."