Talks on resolving the EU-UK stand-off over post-Brexit trade rules for Northern Ireland resume in London on Tuesday, with the focus shifting to a row over the role of the European Court of Justice.
Language used by allies of UK Brexit minister Lord David Frost suggested there could be room for a compromise on the issue, although British officials said he stuck by his position of seeking the removal of the ECJ’s oversight role in the trade rules.
There has been media speculation that Frost could support a “Swiss-style” governance arrangement for the Northern Ireland protocol, the part of the UK’s withdrawal agreement that sets out the region’s trade rules and aims to avoid a hard border on the island of Ireland.
Under such an arrangement, an arbitration panel would be set up to deal with disagreements about the protocol, with the ECJ retaining a role to interpret questions of EU law.
UK officials said Frost’s formal position had not changed. “The role of the European Court of Justice in resolving disputes between the UK and EU must end,” added one.
But that language left open the possibility of disputes being settled in the first instance by an arbitration panel.
British officials noted it would still put the ECJ at the apex of the system, giving it a key role in ruling on disputes.
The European Commission argues the ECJ must continue to play its role as the ultimate court for the EU single market. Under the Northern Ireland protocol, the region remains part of the single market for goods.
The question is whether an arbitration system can be devised that leaves the ECJ’s role sufficiently arm’s length to allow Frost to claim victory, but satisfies Brussels that its fundamental legal order has not been breached.
Without a compromise, Frost has threatened to activate Article 16 of the Northern Ireland protocol, which allows either side to suspend part of the trade rules in the event of severe disruption.
He insists he does not want to do this, although EU capitals are urging the European Commission to prepare a range of retaliatory measures if Johnson acts unilaterally to suspend the protocol.
The protocol mandates customs and regulatory checks on goods going from Great Britain to Northern Ireland, and business has complained of overly bureaucratic arrangements that have resulted in gaps on supermarket shelves.
The creation of a trade border in the Irish Sea is also one of the factors that was blamed for violence in Belfast in April.
British officials said the first round of technical discussions between the two sides last week on a possible compromise about the protocol were “constructive”, but the exact role of the ECJ remains the biggest obstacle.
A negotiating team from the European Commission will travel to London on Tuesday for several days of talks on issues including customs checks and border rules for animal and plant products.
“The talks this week were constructive and we’ve heard some things from the EU that we can work with, but the reality is that we are still far apart on the big issues, especially governance,” said a British official.
Frost and European Commission vice-president Maros Sefcovic are due to meet in person at Westminster at the end of the week to take stock of progress in the talks so far.
The talks are expected to run into November, although Frost’s team has warned that “solutions must be found rapidly” because trade disruption in Northern Ireland remains and “cannot be endured for much longer”.
Frost’s team claimed the Northern Ireland protocol was now stopping Christmas crackers from reaching the region from Great Britain.
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