Britain drops demand for removal of ECJ role from NI protocol

Britain has dropped its demand that the role of the European Court of Justice (ECJ) must be removed from the Northern Ireland protocol in its negotiations with the European Commission. A senior British government official said London still believed the protocol's governance arrangements were unsustainable in the long term but acknowledged that the commission had no mandate to renegotiate the protocol.

The official said British negotiators had made an important shift in their position recently so they were no longer insisting on solving the governance issues now and were content to focus on the practical problems that have manifested themselves so far.

The official acknowledged that the European Commission had no mandate to renegotiate the protocol and was not going to get a green light to do so from European Union leaders. Britain has now agreed to limit the negotiations to the issues both sides agree are creating difficulties, such as access to medicines and the burden of customs and regulatory checks on goods.

Brexit minister David Frost has stressed on a number of occasions since the summer the importance of addressing the role of the ECJ in the protocol. In recent weeks, Lord Frost has toned down his rhetoric about unilaterally suspending parts of the protocol by triggering article 16 and he has now removed a major stumbling block in the way of an agreement by effectively taking the governance issue off the table.

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Article 10

The official declined to say if Britain had also long-fingered its demand for changes to article 10 of the protocol, which can apply EU state-aid rules to measures affecting trade between Northern Ireland and the EU. And British negotiators continue to insist that the European Commission’s proposals to reduce checks and procedures on goods moving between Great Britain and Northern Ireland do not go far enough.

The official characterised dropping Britain’s demand on the ECJ as a response to the commission’s move to change EU rules so that the supply of medicines to Northern Ireland can be guaranteed, adding that both sides’ original proposals had been opening positions and expressing the hope that the British concession would unlock more progress.

Lord Frost said he and European Commission vice-president Maros Sefcovic had “not reached agreement” on the protocol after their online meeting on Friday.

In a statement on Twitter, the Brexit minister said: “We have made further limited progress on medicines but we have not reached agreement.

“I underlined the need for movement on all the difficult issues created by the protocol, including customs, agri-food rules, subsidy policy, VA/excise, and governance including the Court of Justice.

“We will not find a durable solution that does not deal with all these problems.”

Mr Sefcovic said “it’s crunch time for medicines”, with the European Commission ready to amend EU legislation. “We continue to work hard to turn our proposals into real benefits for all communities in NI,” he tweeted.

He said he and Lord Frost would meet twice next week on December 15th and 17th.

A UK government spokesperson told The Irish Times later that “any durable solution must address the full range of difficulties created by the protocol, including on the European Court of Justice.”

Boris Johnson told the House of Commons this week that triggering article 16 remained an option if the current negotiations failed and that the protocol was not working.

EU officials have made clear to Lord Frost that triggering article 16 could lead to the termination of the Trade and Co-operation Agreement (TCA).