Letter: Finding solutions to N Ireland protocol need not be intractable

The impasse in the implementation of the Northern Ireland protocol is poisoning the whole relationship between the UK and the EU and needs urgently to be resolved (“Top unionist tried to dilute NI protocol bill”, Report, November 26; and “Ireland urges DUP to soften stance on post-Brexit trade”, Report, November 9).

One issue that might be thought intractable, but need not be, is the role given to the European Court of Justice under the protocol, including its jurisdiction in actions brought against the UK by the commission for alleged infringements of certain rules of the internal market for goods.

Such infringement actions may be considered by some to represent an especially serious encroachment on UK sovereignty. However, the fact that a power exists does not mean that it should necessarily be used. The infringements in question could instead be pursued by way of arbitration under the dispute settlement system of the withdrawal agreement (WA), a familiar technique of public international law with no implications for the UK’s sovereignty.

There would be no practical difference in the effectiveness of the remedy against such infringements, since any ruling by the Court of Justice in an infringement action could ultimately be enforced only through the same WA machinery. It is true that an arbitral tribunal would be required to refer issues of the interpretation of EU rules to the Court of Justice, but that applies to all disputes under the WA, not just to the special arrangements for Northern Ireland.

The approach here suggested would not entail any amendment of the text of the protocol; an informal agreement would suffice.

It is offered as just one of a variety of solutions that may be available, now that the old British virtue of pragmatism, for which we were once admired, appears at last to be reasserting itself in our relations with the EU.

Sir Alan Dashwood KC
Cambridge, UK