Northern Ireland Minister Steve Baker is proposing to reopen the Brexit trade deal David Frost struck with the EU as a way to address the problems caused by the Northern Ireland Protocol.
The proposal comes after Rishi Sunak moved to quell a rebellion within the Conservative Party over suggestions that Downing Street is considering a Swiss relationship with the EU to ease wider trade barriers to food and agricultural products.
In a confidential document circulating at the Northern Ireland Authority, Baker outlines potential ways to remove the role of the European Court of Justice in disputes, something both trade unionists and the Eurosceptic European Study Group are calling for.
The proposals essentially revert to a sequential argument that the UK lost in 2017 while the Conservative Party was in turmoil over whether to stay in the EU’s customs union and single market.
When it failed to secure the necessary commitment from Theresa May, the EU decided that the Northern Ireland Protocol should be placed in a legally binding Withdrawal Agreement rather than a trade deal.
In the paper, Baker suggests reversing this sequencing in retrospect to end the dispute over the Northern Ireland Protocol.
He suggests updating the trade agreement by adding a “chapter on customs cooperation” and amending the protocol to include a dispute mechanism that does not involve the ETS.
But experts say it could be an insurmountable challenge.
“All of this is theoretically possible, but whether the EU will agree to it is another matter,” said Catherine Barnard, a professor of EU law at the University of Cambridge and UK deputy director at the “Changing Europe” think tank.
She said the EU “has taken a very strong position” that the ECJ must play a role in the protocol if Northern Ireland is to stay halfway – abiding by both UK and EU trade rules.
“The EU will say until it blues its face that because Northern Ireland remains in a customs union, because everything from packaging to things as rare as animal semen is subject to EU law, the ECJ must play a role because it is the sole arbiter of its own law,” she said .
Katy Hayward, professor of political sociology at Queen’s University Belfast, said it was hard to imagine the EU revising deals that have taken four tumultuous years of negotiations.
“The trade terms between the UK and the EU have a direct impact on the challenges facing post-Brexit Northern Ireland, which is located between the UK and Ireland. Thus, the recognition that TCA has implications for the operation of the protocol is welcome. However, if [vice-president of the European Commission’] Maroš]Šefčovič has no mandate to rewrite the Withdrawal Agreement to fix the protocol, and certainly no mandate to change the TCA.
‘Although in both contracts there is the possibility of adjustment by mutual decision between Šefčovič and [UK foreign secretary James] Cleverly, it wouldn’t be enough to make substantive changes or add new chapters,” Hayward said.
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But Baker argued that although it is a “narrow and steep” path, there is a political will to find a solution to the Brexit issue in Northern Ireland, given that US President Joe Biden, the EU, Ireland and the UK governments have expressed their determination to find a negotiated solution before 25 anniversary of the Good Friday Agreement in April next year.
Under the current arrangements, businesses shipping goods from the UK to Northern Ireland must comply with EU customs rules and regulations and standards.
The EU has proposed a light express lane for goods that remain in Northern Ireland such as sausages, ready meals and garden produce including seed potatoes and trees, for supermarkets and garden and farm shops.
The UK called for a similar system with “green lanes” for lorries loaded with goods bound for Northern Ireland and “red lanes” for goods destined for the Republic of Ireland and the EU.
Šefčovič recently said that this system would limit checks to a few trucks a day.
Last year, Šefčovič said a Swiss trade deal would get rid of 80% of checks as it would mean that food and farming standards in the UK would be legally aligned with the UK.
However, Sunak dismissed reports that he was now considering it as an option on the wider UK-EU stage, saying earlier this week that having “regulatory freedom” to deviate from EU standards was a key advantage, insisting that no it will be devoted to any future discussions.