UK seeks Brexit fudge to end dispute over European court

The UK is exploring a possible compromise over the role of the European Court of Justice in Northern Ireland, one of the most difficult sticking points in ongoing negotiations about post-Brexit trading arrangements.

British proposals to break a long-standing deadlock over the role of the court include supplementing the ECJ with an independent arbitration panel, according to multiple people familiar with the talks. This panel would be called on to settle future disagreements, with the ECJ being consulted on matters related to EU law, the people said.

Negotiations between the UK and the European Union have intensified in recent days and have included discussions about the ECJ’s role. 

Under former Prime Minister Boris Johnson the UK agreed to ECJ oversight of disputes over Northern Ireland as part of its wider Brexit deal with the EU. The provision angered hard-line Brexiteers in the European Research Group of Conservative MPs, as well as pro-UK lawmakers in Northern Ireland’s Democratic Unionist Party who want to protect the integrity of the UK. 

In recent years the UK has insisted it wants to strip the court of its role in its entirety. Now negotiators for Prime Minister Rishi Sunak’s government hope to craft a proposal that would win ERG and DUP support, the people said — while also being acceptable to the EU. The bloc has long insisted that the ECJ must remain the final arbiter of the bloc’s law.

A UK government spokesperson said that any Northern Ireland solution “must address the range of issues including governance and the democratic deficit on how new EU laws apply in NI.” A European Commission spokesperson declined to comment.

A bill focusing on removing existing EU law from the UK statute book is due to be debated in the House of Commons on Wednesday, bringing the issue into focus in London even as negotiations progress over Northern Ireland. 

Watering down the ECJ’s role is a political issue for the UK, but a legal red line for the EU. 

One Brexiteer MP said they would accept a fudge if significant progress is made to reduce checks on trade between Britain and Northern Ireland. Another said the UK government must maintain its commitment to remove EU laws from the British statute book by the end of 2023.  

Some hardline Brexiteers may insist on there being no role for the ECJ whatsoever, and the ERG has not yet come to a unified position, they added. It’s possible the UK and EU could delay a formal decision on the ECJ, one of the people said, though a person close to the negotiations insisted they wanted a lasting resolution to be agreed in the current round of talks.

Expectations of further progress on the Northern Ireland issue have been building since last week when the EU agreed to use a real-time UK database tracking goods moving over the Irish sea border. UK Foreign Secretary James Cleverly and European Commissioner Maros Sefcovic talked on Monday and pledged to continue working toward a solution.

The EU Retained Law Bill being debated on Wednesday would allow nearly all remaining EU regulations to be either repealed or absorbed into UK domestic law by the end of this year. Lawmakers from both the Conservative and opposition Labour parties have proposed an amendment for ministers to publish a list of every piece of legislation being revoked, giving them the ultimate say on which legislation is affected.

Sunak has received requests from senior civil servants to delay the planned “bonfire” of EU-derived legislation by three years until 2026, insisting the process is proving extremely difficult.