The UK is to change tack in negotiations over the Northern Ireland Brexit protocol and will push for an “interim” deal to avert any further deterioration of political stability in the region.
Brexit minister David Frost is set to propose a new approach based on a “staged solution” with a deal on customs declarations and physical checks on goods a priority to address the immediate impact on people’s lives and livelihoods.
He will also suggest a new solution for governance, softening the UK’s demand that the European court of justice should be eliminated from dispute resolution entirely.
Instead it believes an arbitration proposal in the wider withdrawal agreement – which allows disputes to be settled in the political arena in the first instance – could work in the Northern Ireland context.
Under this scenario, the ECJ would only be invited to give its opinion on a matter of EU law if the dispute was unresolved and went to a second stage of an arbitration panel.
A UK government source said: “Since the EU won’t address all the issues we put on the table now, we are willing to look at interim solutions which deal with the most acute problems. But any such interim agreement must put a stop to the ECJ settling disputes between us and the EU, now and in the future.”
The change will be interpreted as a significant stepping back from the brink by Lord Frost who has threatened to blow up talks on several occasions by using article 16 of the Northern Ireland protocol, which would allow it to suspend parts of the deal.
But it appears that fears the Stormont devolved government could collapse before the assembly elections in May have brought a renewed focus to issues.
On Friday, Frost and the EU’s Brexit negotiator, Maroš Šefčovič, will meet virtually for the second time in a week. Frost is expected to announce talks will continue into the new year instead of coming to an abrupt halt due to article 16.
The EU will also announce plans for legislation to remove barriers for the supply of medicines in Northern Ireland.
Cambridge professor of EU law Catherine Barnard said the suggestions floating around Whitehall for a solution over the European court of justice had merit and would effectively mean swapping article 12 of the Northern Ireland protocol for articles 169 to 174 of the overall withdrawal agreement.
“I’ve always thought this is a sensible compromise. But it requires compromise on both sides,” she said.
“It would require the UK to recognise that there is some role for the ECJ but it would also require a big compromise for the EU because it would mean they didn’t have the full application of the EU remedy system to use in disputes,” she added.
It would also require rewording part of the withdrawal agreement which the EU has been vehemently opposed to.