The impasse over the Northern Ireland Protocol is delicately poised. The EU will grant an extension to the grace period on chilled meats, but there is still the potential for another clash with London, just as the marching season gets under way.
The fact that London asked for the extension, rather than simply announcing it unilaterally, is being seen as a sign of a less confrontational approach.
The letter was circulated among member states on Tuesday afternoon, but the Irish Government had already been making the case for an extension.
On Friday, June 18th, the Taoiseach Micheál Martin urged both Commission President Ursula von der Leyen and European Council President Charles Michel to support an extension.
"The Taoiseach emphasised the need to dial down the rhetoric (on both sides) and to emphasise the commercial/job creating aspects of the Protocol, which gets drowned out by all the negatives," said a Government source.
On Wednesday morning, Maroš Šefcovic, the EU’s co-chair of the EU-UK Joint Committee, recommended to member states that the extension be granted.
"You could conclude from the discussions that member states understand the need to do this," says one EU diplomat. "And that an extension till the end of September is necessary. During that period an intensified effort should be made to reach a long-term, sustainable solution to the [food safety and animal health] SPS issue."
Sefcovic referred to the "difficult political climate" in Northern Ireland and the imminence of the marching season.
However, he also said there was increasing evidence that Northern Ireland supermarkets were starting to source chilled meats either locally, or from the South, and not from GB.
In other words, a market shift was under way, therefore a long term adaptation was possible.
However, Sefcovic insisted, and member states agreed, that there should be conditions attached to the extension.
"The bottom line is that member states want to do it, but at the same time they want to ensure that the conditions associated with the grace period last December continue to apply," says an EU diplomat.
Those conditions, mutually agreed last December by Michael Gove, then the UK’s chair of the Joint Committee, and Sefcovic, required the UK to remain aligned with EU SPS (sanitary and phytosanitary) rules for the duration of the grace period.
Such meats also had to be clearly labelled as having been produced in accordance with those rules, and that they would be destined for end consumers in Northern Ireland only.
There was also to be a separate channel at Larne and Belfast ports where such products could be checked.
But this time things would be different.
Last December, the chilled meats grace period deal required a technical and legal work around. Because the Northern Ireland Protocol was already part of a legally binding international treaty, by not applying its provisions for six months, the UK would be technically breaking the law, with the EU’s connivance.
The fix was that the UK would issue a unilateral declaration, spelling out how the grace period would work and what conditions were attached, and the European Commission would issue its own unilateral declaration, "taking note" of the UK’s declaration.
The European Commission is understood to have proposed a repeat of this work around. However, member states have objected.
The Council legal service, which operates on behalf of member states, argued strongly that, under both the Trade and Cooperation Agreement (TCA) and the Brexit Withdrawal Agreement, any change to how a treaty was being implemented had to be formally approved by member states under Article 218(9) of the EU Treaty.
The Article spells out that if there is any suspension in the application of a treaty then the European Commission has to make a proposal to member states, and they in turn must formally adopt it.
This would be time-consuming. Yet, the grace period expires next Thursday.
EU and UK officials are said to have been in constant contact to ensure that the extension could be granted on time.
"Our concern was that if the Council became too wrapped up in this process it risked the UK throwing up their arms and saying, listen, we asked and the EU has just become immersed in its own bureaucratic world, so we're going to extend [the grace period] anyway," says a source familiar with the process.
"However, there have been a lot of technical discussions, Frost and Sefcovic have been in contact, and the message has gone to the UK: don't do anything rash, this will be alright on the day, we just have some internal procedures to go through," the source says.
Such jitters around another potential flare up, and more unilateral action by the UK, reveal the challenges in divining London’s strategy.
The G7 summit in Cornwall is said to have left Boris Johnson angry that the focus on the Protocol overshadowed the first big showcasing of Global Britain.
With the US démarche, critical of the UK’s stance on the Protocol, the EU and US were, uncomfortably for London, on the same page. Brussels, Washington and Dublin were also aligned on the virtue of the UK following EU SPS rules as the best way to radically reduce checks and controls on GB-NI trade.
In the meantime, David Frost, the UK’s lead Brexit minister, and Northern Secretary Brandon Lewis, have faced sharp questioning at parliamentary committees on whether they have fueled the narrative - taking hold in unionism - that the Protocol has undermined the constitutional position of Northern Ireland in the UK.
On the one hand, it seems the UK has softened its confrontational approach.
However, on the other hand, there is said to be the sense in Downing Street that the Johnson-Frost hardball approach has survived intact.
"Downing Street will be looking very carefully to see if the US and EU are still in step, and that they keep highlighting those messages at senior level," says one source familiar with UK thinking. "There's this fallback belief that they can separate the US and EU, if the EU overreacts to any more unilateral measures."
At the Foreign Affairs Committee on Tuesday, David Frost said: "Ireland is very much debated in Washington as are many other issues, and we talk honestly and frankly to the Americans as our closest allies about that and lots of other things. We think our views are well founded and well grounded and persuasive."
Furthermore, Boris Johnson is still not paying an electoral price for either the privations of Brexit or his handling of the Protocol.
When on June 19th the UK Food and Drink Federation (FDF) announced that exports to the EU had plummeted by 47% in the first quarter, the fact that an SPS deal with the EU would potentially reverse such a drop in trade barely registered.
"They’re getting this consistently from all the main trade bodies," says Paul McGrade, a former Foreign Office official and currently senior counsel with the Lexington consultancy, "but they can shrug it off because they're not getting it from their backbenchers."
By contrast, the shock Tory defeat in the Chesham and Amersham by-election prompted real backbench strife over planning laws and the HS2 rail link.
This suggests the UK government will hunker down on its antagonistic approach to the Protocol, and certainly the messaging is relentless: the way the Protocol was negotiated is at odds with the way it is being implemented, it was an "open-ended" agreement (or even a "position paper", according to Brandon Lewis), the Protocol depended on agreements within the Trade and Cooperation Agreement (TCA) which never materialised, etc (all strongly disputed by the EU and the Irish Government).
The key to understanding the UK strategy is to understand David Frost, who now occupies an extraordinary place within the nexus of Britain’s posture towards the EU.
Boris Johnson has vested in him a tremendous degree of power and discretion, which has gone unchallenged by the cabinet, backbenchers and the opposition.
Frost gave a speech in Brussels in February 2020, deliberately aimed at any doubters on the EU side that Theresa May’s vision of a softer Brexit was being swept aside in favour of a hard Brexit, in which the UK would accept the trade-off of much more trade friction.
Frost is unapologetic that this was his vision, that his vision has prevailed, and that Boris Johnson supports this vision.
The Brussels speech was "a personal speech about me and the vision of Brexit and the justifications of Brexit," Frost told Anand Menon, of the think tank UK in a Changing Europe this week.
"I believe that a nation state, organised in its own rules, in a way that suits it best, underpinned by genuine democracy, is the best form of social organisation we’ve found and we’re going to show that," he said.
Frost’s view of the Irish question, as expressed in the interview, is instructive. It seems clear Frost never really signed up to the view that a hard border on the island of Ireland needed to be avoided at all costs.
He accused Theresa May and her negotiating team of "intellectual errors" which led them to swallow the Irish and EU analysis.
These "errors", he said, "seem to have led to the conclusion that alignment [by Northern Ireland with EU rules] was the only way to solve these problems, and hence took you in a direction that ended up [with the UK] being part of the customs union and single market and the backstop. That was the core of their problem."
In fact, Theresa May fought tooth and nail to avoid alignment, an EU proposal that caught the UK off guard. In the event, she managed to get that option relegated to third place, behind a free trade deal and alternative arrangements in the famous Joint Report of December 2017.
If we take David Frost at his word, his mission is to ensure that there is no going back, that Brexit will be worth the pain of a slump in trade activity between the EU and UK, and that, shorn of obligations to any multilateral organisation, Britain will be nimble and will thrive.
Through that lens, Frost’s handling of the Protocol starts to make sense.
If he gives in to the idea of aligning with EU food safety rules, even to get rid of 80% of checks and controls on the Irish Sea, and even temporarily, then his vision of Brexit unravels.
If a narrative emerges that a sizable percentage of Northern Ireland stakeholders are willing to accept the Protocol, or even to benefit from it, because it gives those businesses unfettered access both the EU’s single market and the UK internal market, then his vision of Brexit is undermined again.
That’s why Frost will rarely - if ever - speak about Northern Ireland’s potential in attracting investment based on access to the EU’s single market.
"Frost wants to establish, not just a narrative, but facts on the ground," says a source familiar with Downing Street thinking, "with trade deals, and trying to find areas for divergence [from EU rules], meaning you just can't go back and the debate moves on."
Frost has made it clear that - post Theresa May - the EU had to know that they were dealing with a different creature, and that the UK was prepared to walk away.
In the end, however, the UK did not walk away, either from the Withdrawal Agreement or the TCA negotiations. That suggests that there is a limit to his, and Johnson's, confrontational approach, especially now that the Biden administration has signalled its presence in the debate.
For the moment, with the EU granting an extension to the chilled meats grace period, there is a temporary truce.
Brussels wants the extension to coax London into accepting an alignment arrangement, but the UK is still resisting.
Frost has submitted a paper - which he asked the Commission not to share with member states - described as "equivalence with teeth", whereby both sides acknowledge each other’s high food safety standards, and if either side diverges from those standards, then the other side can increase checks and controls accordingly.
There would be no alignment, and certainly no role for the European Court of Justice (ECJ). The plan would be accompanied by an elaborate trusted trader scheme, with large supermarkets upgrading their "auditable" surveillance and traceability systems.
"The European Commission is willing to try and be creative on this," says one EU diplomat, "but food is based on the precautionary principle and a lot of detailed regulations, and food safety is such a sensitive issue across the EU. It’s not so easy to be creative. Immediately, you hit the need to amend fundamental pieces of EU legislation."
So, the real negotiation has not yet started.
The EU will want the marching season to come and go, and then tackle this in a calmer climate.
Whether the UK agrees with this approach, or resumes the confrontational approach, will be critical.
"If the UK does decide to raise the temperature on the Northern Ireland Protocol, it would make sense to publish its 'equivalence with teeth’ proposal in advance, to show that the UK is being pragmatic and seeking creative solutions," says Paul McGrade, of Lexington.
"That would be a tactical move in the battle for NI - and especially US - opinion. If that happens, further unilateral moves, perhaps even formal notification that the UK is considering taking ‘safeguard measures’ - technically not a triggering of Art.16, though it would have the same impact politically - are likely."
That could mean rolling confrontations, right into the Autumn. There are those who believe that David Frost’s preference would be for a fractious political climate in Northern Ireland in the medium term, that might favour a DUP revival ahead of May’s Northern Ireland Assembly Elections.
After all, if the DUP lose seats next year, and the Assembly then votes by a majority in 2024 to continue with the Protocol, then that, too, would undermine Frost’s vision of Brexit.