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The EU appears to have “moved significantly” with its offer of a new Brexit deal for Northern Ireland that dramatically cuts border checks on British goods, Lord Frost said as he called for intensive talks with Brussels to begin.
Brussels said it had gone “far beyond tinkering at the edges” of the Northern Ireland Protocol and urged Britain to show “pragmatism” over its demands on the European Court of Justice, which the EU rejected.
Lord Frost wants to strip EU judges of their role in Northern Ireland. The province follows some single market rules to prevent a hard Irish border, and the UK has also called for a substantial overhaul of the protocol, which it says has had a chilling effect on trade.
Brussels warned that Northern Ireland would lose access to the single market if it did not accept the jurisdiction of the EU’s top court in Luxembourg, which has divided Tory MPs between those welcoming the offer and those demanding Lord Frost stand firm on the ECJ.
In a sign that the threat of triggering Article 16 to unilaterally suspend parts of the Northern Ireland Protocol had been put on ice for now, the Brexit Minister said he would work “very hard” to strike a deal with the EU.
Lord Frost said the reach of the ECJ remained a key issue in talks expected to begin on Thursday.
Asked about the EU’s proposals, he told peers: “Although other people may use the words red lines, I never do. We’re beginning a negotiation and we’ve got a track record of reaching successful outcomes in negotiations despite the predictions that we would not. I hope we will do so again this time.”
Maros Sefcovic, the European Commission vice-president, said: “I have listened to and engaged with Northern Irish stakeholders. Today's proposals are our genuine response to their concerns. We are looking forward to engaging earnestly and intensively with the UK Government, in the interest of all communities in Northern Ireland.”
There is growing expectation that a fix can be found to keep EU judges at arms length in Northern Ireland.
The possible landing zone could be modelled on the EU’s treaty with Switzerland, where an independent arbitration panel resolves disputes. However, when questions about EU law are posed, the ECJ offers a view which must be taken into account by the panel.
An EU official said it was not certain that the UK would accept such a deal. “The Swiss-inspired model, the starting point of it, is that the Court of Justice remains at the apex of the system. I’m not sure how much that will change the deal from the UK perspective
“Should the UK insist on its constitutional concerns? Then there remains a very big gap between the ideas that we’re putting on the table today and what the UK Government is asking for.”
The official added: “It’s a call for the UK to be realistic and focus on providing certainty, stability and predictability rather than focus on these high level constitutional issues.”
Lord Frost has warned that he would be prepared to trigger Article 16 of the Northern Ireland Protocol and unilaterally suspend parts of the treaty if negotiations end in failure. EU officials warned they were prepared to retaliate with legal action, arbitration and eventually trade tariffs if the clause was triggered.
“If the UK Government shows that kind of pragmatism, then we think that is a way through that,” the official said in Brussels. “Of course, we hope for the best and prepare for the worst and we can’t exclude the UK, nevertheless, will use Article 16.”
The proposals could remove up to 50 per cent of checks on goods and about 80 per cent of checks for SPS, which are for animal and plant health. Goods destined for Northern Ireland only could go in an “express lane” when arriving in the province from Britain.
Brussels wants real-time access to UK trade databases in order to police which products cross into the Republic of Ireland, the EU's external border, and for the UK to fully implement existing requirements in the protocol on border posts.
Special exceptions from checks could be made for “national identity goods” such as British sausages in order to avoid another flare-up of the sausage war that brought the UK and EU to the brink of a trade conflict before the summer.
The plans have been likened to the “maximum facilitation” or “max-fac” strategy previously called for by Brexiteers in 2019, with technological solutions used to minimise physical checks on the Irish border.
The proposals envisaged that most of the customs formalities would be handled away from the border, with checks on documents carried out digitally.
Where customs paperwork is required for shipments, the commission has dramatically reduced its complexity and would only insist on the most basic of details for consignments sent from the rest of the UK. This would mean a lorry would only have to fill out one form per shipment instead of each individual item in the vehicle.
“We believe that this package is significant. It goes far beyond tinkering around the edges,” one official said. “It proves that we can find solutions for real issues without renegotiating the protocol. We are proposing a different model, fewer checks on the one hand, but on the other hand, more guarantees in terms of governance and more market surveillance.”
Brussels has dropped its demand that the UK align with EU SPS rules, which it said would remove 100 per cent of the checks but which was unacceptable to Lord Frost on sovereignty grounds.
That means the EU will not offer pet passports for people wishing to take their dogs, cats and ferrets to Northern Ireland as covering live animals would require full alignment with Brussels’ rules. Guide dogs will be able to accompany their owners freely on trips between GB and NI, which are part of separate proposals drawn up prior to Wednesday’s package.
The official added: “Our proposals are not being presented to the UK Government today as a take it or leave it package. In an ideal scenario, we will have an agreed solution as soon as possible.”
The bold offer appeared to have driven a wedge between Tory MPs, with some urging Lord Frost to stand firm in his demands over the ECJ. Others greeted the proposals with cautious optimism, including those behind the “max fac” proposals of two years ago.
They included Robert Buckland, the former Justice Secretary, who on Wednesday told The Telegraph: “It’s great the EU are moving and are prepared to compromise.”
But David Jones, the deputy chairman of the European Research Group of Conservative MPs, said: “Lord Frost has to stand firm, because the whole point is that we will not complete our departure from the European Union until every part of the UK is no longer subject to the jurisdiction of the ECJ.”