Thread by @GeorgePeretzQC

Some thoughts on this article.

https://twitter.com/sime0nstylites/status/1451410945465536538

Indeed. These list the the areas of EU law that still apply to the UK in respect of Northern Ireland. (NB that in some cases - eg State aid - EU law applies to some UK or even GB measures if they affect NI.)

This is the idea - taken from the proposed model for 🇨🇭.

Such matters wouldn’t be “immediately” be escalated to the ECJ. But they would *eventually* (and inevitably) be escalated there. Why, exactly, is that an improvement?

“Limited role”; “narrow matters”: but the dispute would almost inevitably be about EU law - the whole point of the Protocol being to keep NI in the single market for goods (and in effect in the EU customs union) so as to avoid any checks etc on the land border.

Good luck with that.

Well yes: apart from anything else, Art 16 is a last resort (“strictly necessary”; “appropriate”). So hard to see any sound basis for its use while negotiations on the problems are ongoing.

Three concluding thoughts.

1. The proposed compromise would still require changing the text of the Protocol (quite substantially). That would require the agreement of eg 🇫🇷, 🇩🇪, a negotiating mandate, and a ratification process.

No enthusiasm on the EU side to do that. And the Polish crisis makes it harder to do anything that looks like caving in to threats to breach legal obligations.

2. Why (the EU will ask and we should ask) is this all necessary to achieve a change which in reality leaves the ECJ in place but gives the current government a fig leaf?

3. The current government had a chance as part of the TCA negotiations to put into that agreement some changes to the Protocol - in particular on State aid. It fluffed its chance.

See more generally my piece in @openDemocracy. opendemocracy.net/en/opendemocra…

PS - one way in which the not-Swiss model differs from the current position is that it removes the possibility of the UK domestic courts making a reference to the ECJ for a binding ruling on what EU law means.

But domestic courts would still be enforcing EU law and would follow ECJ case law unless specifically and clearly told not to in domestic legislation (legislation which would be a clear breach of the UK’s international obligations and probably wouldn’t clear the Lords).

Removing the possibility of a reference slows up and weakens enforcement of the obligation: it doesn’t change the obligation or the ECJ’s rule as the final arbiter of what the obligation means.