Downing Street has described the role of the European Court of Justice (ECJ) as a "central issue" in negotiations over the Northern Ireland protocol, as the European Commission prepares to outline possible changes to how the agreement is implemented. Boris Johnson's official spokesman said the issue of how disputes over the protocol were resolved was fundamental.
“It is a central issue. It is core to what we think needs to be addressed if the protocol is to be put on a long-term footing,” he said.
European Commission vice-president Maroš Šefcovic will on Wednesday set out proposals on how to ease the protocol’s implementation, which are expected to include measures to ease food and plant safety or so-called SPS checks that would help address restrictions on trade in chilled meat from Britain into Northern Ireland that has seen the dispute dubbed the “sausage war”. The proposals will also address how to ease customs checks, the supply of medicines, and how to politically involve Northern Irish stakeholders and political representatives and institutions in oversight of the deal.
Governance structure
In a speech in Lisbon on Tuesday, Brexit minister David Frost will warn Brussels that such changes will not be sufficient unless the protocol's governance structure is overhauled. In a command paper published in July, Frost criticised the current arrangements and the role of the ECJ in policing compliance with the protocol and called for an international arbitration panel to take on the role instead.
"These arrangements are highly unusual and have not supported problem-solving in the context of a divided society – indeed, they have arguably increased rather than reduced tensions. They have also contributed to a false sense of separation between Great Britain and Northern Ireland, as trade arrangements operated within one part of the United Kingdom are ultimately overseen outside of it," he said.
“In devising alternative dispute settlement arrangements, our starting point should be to return to a normal treaty framework, similar to other international agreements, including our Trade and Co-operation Agreement, in which governance and disputes are managed collectively and ultimately through international arbitration. It may be desirable to also put in place enhanced consultative processes to provide a framework for effective discussion and resolution of issues that arise.”
‘Good faith’
The prime minister’s official spokesman said on Monday that Britain had acted “in good faith at the time” it negotiated the protocol but suggested that the European Commission’s infringement proceedings over breaches to the protocol showed that the governance arrangements were unsustainable.
“Since then we’ve seen how the EU is inclined to operate the governance arrangements; for example, launching infraction proceedings against the UK at the first sign of disagreement,” he said. “These arrangements aren’t sustainable. We need to find a new way of resolving issues that arise between us, using mechanisms normal in all other international treaties.”
The European Commission dismissed London's demand, with chief spokesman Eric Mamer describing it as "ground that we have covered a million times".
Oversight of the European courts was essential to provide legal coherence and a functioning business environment throughout the single market, spokesman Daniel Ferrie added.
“Our focus should be on those issues that matter the most to people in Northern Ireland, and not on requests such as removing the role of the European Court of Justice,” he said, adding that removing the role of the court “effectively means cutting Northern Ireland off” from the EU single market.
