Intense talks on the revision of the Northern Ireland Brexit deal will begin in Brussels on Friday – amid growing speculation that both sides could be getting closer to a compromise.
Brexit Minister Lord Frost, who negotiated the original agreement but now wants to revise it, will have lunch with EU Brexit leader Maros Secfovic on Friday in Brussels to initiate the process.
It will be the couple’s first meeting since the European Commission put forward a “far-reaching” package of proposals to soften parts of the deal, disrupting trade between Northern Ireland and the rest of the UK.
But despite pledges to simplify the new bureaucracy and drastically reduce the number of samples, the package failed to address the EU’s most noticeable red line – the role of the European Court of Justice (ECJ) in overseeing the agreement.
The UK originally opted for the ECJ to oversee the Northern Ireland Protocol two years ago but is now saying it should be removed from the agreement.
But the red line on the court established by Lord Frost has little to do with the disturbance apparently caused by the Protocol, but appears to be more of an ideological objection.
The Brexit minister says the abolition of the role for the court assumes that disputes will not be settled in the court of either party. However, he has not attempted to accuse the ECJ of any practical impact on trade or the functioning of the protocol.
EU officials say almost no one in Northern Ireland raised the CJEU as an issue during sessions on the protocol. They say their proposals are practically an opening offer that “prepares the ground” for talks with the UK on the subject.
But they say they are “focused on solving practical problems” raised by people in Northern Ireland rather than necessarily following the UK red lines like the case law of the ECJ.
The success of the talks – which both sides say they want to be concluded by Christmas – will likely depend on how serious the UK is in removing any trace of court influence from Northern Ireland. But a classic Brussels “fudge” compromise could be in sight.
Maros Sefcovic did his best to avoid questioning the court when he presented the reform package at a press conference in Brussels on Wednesday. Pressed on the subject, he finally repeated the line of the EU that it was not possible to be in the internal market and not be subject to the court.
Some EU members, including Ireland’s Foreign Secretary Simon Coveney, have suspected that referring to the court may be a way to torpedo EU-UK relations on political grounds. Lord Frost has denied this and says there is little domestic use in talking about Brexit – although his party only won a majority on the issue two years ago.
The suspicion continued this week after senior DUP official Ian Paisley Jr. alleged that Boris Johnson “personally” told him that “after agreeing to the protocol, he would commit to changing this protocol and.” actually to tear it up ”.
Neale Richmond, Brexit spokesman for one of Ireland’s ruling Fine Gael parties, describes the revelation as “unbridled duplicity”. Mr Paisley’s party, the DUP, has opposed the protocol from the start and wants Mr Johnson to trigger Article 16 and suspend its provisions – and would likely be disappointed if both sides were satisfied with a compromise.
Ultimately, Brussels believes that the European Court of Justice needs to be involved in overseeing the deal as it is the ultimate arbiter of EU law. The bloc does not want another body to set precedents under European law for the entire EU, which would have far-reaching and long-term consequences for the nature of the internal market.
However, some observers of the talks believe that a compromise that squares this circle is possible. The Times reports that the Commission may be ready to set up a new independent arbitration tribunal to monitor disputes, using the European Court of Justice only as a last resort to interpret narrow matters of EU law after the dispute settlement fails.
Officials in Brussels on Thursday denied being familiar with such a plan, but did not immediately reject the idea. The commission says its position on the ECJ is well established and widely known.
EU member states that have had little to say about Brexit in recent months have backed the Commission’s plans. Germany’s top diplomat Miguel Berger said his country fully supported the proposals and described them as “substantial and constructive”. He added: “We expect the same from our UK partners. Stop questioning the protocol – let’s find practical solutions! “