By Nicholas Clark
Following disputes over post-Brexit trading relations with the European Union in Northern Ireland, the United Kingdom (UK) dropped its demand that the European Court of Justice (ECJ) be removed as the referee of market regulation in the region. Northern Ireland remains in the single market, albeit formally outside of it, in order to prevent the imposition of a hard border on the Republic of Ireland, per the 1998 Good Friday agreement that ended the conflict in Ireland. [1] This ‘Northern Ireland Protocol’, a key part of the 2020 Brexit Withdrawal Agreement, means that the EU Customs Union and free movement of goods still applies in Northern Ireland, even though the rest of the UK has since departed. The Protocol, particularly the governance role of the ECJ, has been a significant source of domestic discontent in the UK, which sought to break away from the EU without lingering jurisdictional issues.
The particular controversial role of the ECJ applies where a market dispute arises from interpretations of EU law, where the protocol applies in Northern Ireland. Article 16 of the Protocol, allows either party is able to unilaterally take “strictly necessary” measures should the protocol lead to “serious economic, societal or environmental difficulties that are liable to persist”. Furthermore, they must be “restricted with regard to their scope and duration”.
Former Brexit minister Mark Frost claimed that the ‘obstruction’ of trade flows between Great Britain and Northern Ireland provided sufficient cause to trigger Article 16, with fears that the UK would further attempt to escalate trade hostities in order to rid the ECJ of adjudication in Northern Ireland. With the demand dropped, trade tensions seem to be relaxing, although issues with the Protocol have continually raised by British officials.
While the door has been left open for the possibility of future changes of market governance in the region, on the grounds that British officials view the current situation as “unsustainable in the long term”, [2] with the initial warning to the EU on rewriting the protocol cautioning that the government “cannot wait forever”. [3] It is clear that ECJ governance will continue to be a thorn in the side issues for Westminster, but an issue that the UK may not currently have the political currency to pursue.
References:
[1] Andy Bounds, 'UK to drop key ECJ demand on Northern Ireland trading' (Financial Times, 17 December 2021) <https://www.ft.com/content/a0517677-e6ca-44fe-846a-04e3e6388c7f> accessed 2 January 2022
[2] Denis Staunton, 'Britain drops demand for removal of ECJ role from NI protocol' (The Irish Times, 10 December 2021) <https://www.irishtimes.com/news/world/uk/britain-drops-demand-for-removal-of-ecj-role-from-ni-protocol-1.4752375> accessed 2 January 2022
[3] Harry Yorke, 'Lord Frost: EU at risk of making 'historic misjudgment' over protocol concessions' (The Telegraph, 11 October 2021) <https://www.telegraph.co.uk/politics/2021/10/11/lord-frost-brussels-may-make-historic-misjudgment-protocol-concessions/> accessed 2 January 2022