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New proposals from the European Commission to simplify and reduce the burden of rules governing the passage of goods across the Irish Sea from Great Britain to the North are welcome. The reasonable, pragmatic measures will be the basis of talks which open today and should make it possible to preserve intact the Northern Ireland protocol and so to guarantee the continued absence of a land border on the island.
What they are not, and cannot be, is the basis of a renegotiation of a protocol that was agreed freely between the United Kingdom and European Union as part of the former's unfortunate divorce – a necessary, supporting pillar of subsequent agreement on the future relationship. Pulling the protocol down now, or invoking its suspension through article 16, as Britain's chief negotiator David Frost continues to threaten, is likely to propel us into a trade war.
The Brussels offer will see up to 50 per cent of customs checks scrapped, including on chilled meats and plants and on approved and generic medicines. Large mixed consignments of animal-based products will also require only one export health certificate rather than dozens. Goods intended for the North could pass through a "green lane" with minimal checks, while those destined for the South would be put in a "red lane" for more stringent procedures. To facilitate such relaxation the UK would give real-time access to its databases to the EU.
Frost’s insistence in recent days that the UK cannot accept a role for the Court of Justice of the European Union (CJEU) in dispute resolution is deeply problematic. He suggests the EU could easily agree to an alternative independent arbitration system like that in several trade agreements, including the post-Brexit deal with the UK.
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Brussels argues, however, that because the protocol is not just about regulating trade with a third country, but about the internal rules governing goods circulating within the EU single market, including Northern Ireland, adjudication of those rules must ultimately remain a matter for the EU court. This is not a principle that can be negotiated away, as the Commission last week pointed out to Poland, also demanding an a la carte approach to the court's jurisdiction.
In response to concerns about the lack of input from the North into the day-to-day administration of the protocol, the Commission has made welcome proposals to strengthen dialogue within the structures created by the agreement.
The CJEU’s role has no relevance to the smooth flow of trade across the Irish Sea, and that it should be raised as an issue at this stage suggests that London is playing domestic political games with the protocol. Hints from Downing Street that the issue should not be seen as a “deal breaker” are most welcome.