The UK has doubled down on its demand for root and branch reform of the Brexit deal that governs trading arrangements for Northern Ireland, including removing oversight by the EU’s top court.
Despite both the European Commission and the Irish foreign minister Simon Coveney saying that removing the jurisdiction of the European Court of Justice was impossible, Downing Street on Monday insisted the demand was “central” to its bid to renegotiate the deal.
The two sides are now on a collision course over the Northern Ireland protocol in the withdrawal agreement, which has poisoned relations between the UK and the EU since it came into force last January.
Lord David Frost, the UK’s Brexit minister, is due to use a speech in Lisbon on Tuesday to warn that unless the EU agrees to rewrite the protocol it will further destabilise Northern Ireland and wider trade relations between the two sides.
The speech will lay down a marker to Brussels ahead of the publication on Wednesday of a European Commission paper setting out proposals to reduce customs and regulatory checks on goods going from Great Britain to Northern Ireland that were mandated by the protocol.
The British government has said repeatedly that, in hindsight, the arrangements which Boris Johnson agreed with the EU in 2019 to avoid the return of a hard border on the island of Ireland are unsustainable. This is because they created an internal trade border in the UK, in the Irish Sea, under the supervision of a foreign court, it has added.
“It’s simply not sustainable for the EU to make laws that apply in Northern Ireland without democratic scrutiny,” said Downing Street, adding that removing ECJ oversight of Northern Ireland’s trading arrangements was “core to what we think needs to be addressed”.
However the European Commission has ruled out removing ECJ jurisdiction, arguing that it is fundamental to the withdrawal agreement, which places Northern Ireland within the EU single market for goods.
“The EU single market is an ecosystem of standardised rules that ensures trade between member states, it ensures a level playing field,” said a Commission spokesman on Monday. “There are reasons behind [the ECJ role].”
The 27 EU member states, who will be briefed on the Commission proposals to ease customs and regulatory checks on Tuesday, generally back Brussels’ stance.
Downing Street’s stance, and the Commission’s response, fuelled expectations that the two sides will not reach a compromise. One UK government insider said: “The view among many in Downing Street is that the [Northern Ireland] protocol has to go entirely, tweaks won’t do it. Everyone is quite hardline about it.”
Tensions have been rising sharply between the UK and the EU over the protocol in recent weeks.
EU diplomats have warned that if the UK unilaterally suspends elements of the protocol, the bloc could take retaliatory measures, including ultimately imposing punitive tariffs on British products such as cars and fish.
Coveney said the EU’s patience was running thin and questioned whether Frost, by demanding the impossible, was serious about brokering a compromise over the practical implementation of the protocol.
“At some point in time the EU will say ‘Enough, we cannot compromise any more’ . . . I think we’re very close to that point now,” Coveney told RTÉ radio.
But British officials have countered that removing ECJ oversight of the protocol could open the door to innovative solutions that take account of Northern Ireland’s unique political situation.
The UK has warned the Brexit deal has caused sufficient negative economic, social and political impacts in the region to justify unilaterally suspending parts of the protocol, using procedures set out in Article 16.
Northern Ireland’s unionist political parties have called on Johnson to trigger Article 16 and suspend the protocol, and have also boycotted ministerial meetings with their Irish counterparts in protest at it.
The Democratic Unionist party, the largest political group in the region’s devolved government, repeated the call on Tuesday after the High Court in Belfast ruled that the ministerial boycott was illegal.
“The High Court judgment is further proof that the conditions to trigger Article 16 have been met,” said a DUP spokesman.
Additional reporting by Sebastian Payne in London