‘Not possible’ to make Northern Ireland protocol work - EU law expert

Stormont and UK Parliament should govern NI, EU law expert tells Westminster committee

A senior barrister has told a Westminster committee the Northern Ireland protocol is a question of “identity” and he does not believe it is possible to make it work.

Responding to a question from the Conservative MP David Jones, Thomas Sharpe KC – an expert on EU law and a Conservative Party member – said there was a “sort of a commercial logic” to making it function for the business community in Northern Ireland.

Asked specifically if it could work given its “democratic deficiency”, Mr Sharpe replied: “No, I don’t. It is a fundamental issue, who governs people in Northern Ireland.

“It should be Stormont, it should be the UK parliament,” he said, agreeing the same principle should apply regarding the role of the European Court of Justice (ECJ) in the protocol.


He was also asked about the role of the ECJ by the DUP MP Gavin Robinson and answered that it was “a question of identity. You just don’t want, any more than we do in GB, to have the European court telling us what the law ought to be.”

A report in The Times on Wednesday suggested the EU and UK had struck a customs deal which could pave the way for a resolution of the issues around the Northern Ireland protocol, though this was subsequently dismissed by the Irish and UK governments who said no deal had been agreed.

Commenting on the report, the committee chair, the Conservative MP William Cash, said there “might have been a bit of exaggeration here” and added that the members of the Committee “haven’t seen anything to scrutinise, which is the crucial issue”.

Citing government sources, The Times also reported that Brussels has made concessions of the jurisdiction of the ECJ, a key sticking point in UK-EU talks.

For the first time, it recognised that the ECJ could rule on Northern Ireland issues only if a case was referred by courts there, the newspaper said.

Mr Robinson asked if, in Mr Sharpe’s opinion, there was a “construct which would remove ECJ whilst EU law applies to Northern Ireland or do you think, in totality, if you can be free from that legislative framework by consequence you remove ECJ”.

Mr Sharpe said that “if you believe, absolutely fundamentally, whatever law you’re seeking to apply, EU or any other law, nevertheless, the Northern Ireland courts are perfectly capable of dealing with that, then you absolutely can take away the Court of Justice jurisdiction.”

However, he also acknowledged it could prove legally difficulty to do so, adding that “it seems to me if you want to get rid of the Court of Justice you’ve got to get rid of the super structure of it [the protocol]”.

Mr Sharpe was giving evidence on Wednesday to the European Scrutiny Committee, which is examining the UK government’s proposals to amend the Northern Ireland Protocol and the real world impacts they could have on businesses.

Addressing the Committee earlier, Stuart Anderson, the Head of Public Affairs at the Northern Ireland Chamber of Commerce and Industry, said the businesses had “seen the protocol impact in really significant ways, both positively, negatively and not at all, depending on the sector, the structure of supply chains and the historical nature of the business”.

He said the body’s quarterly economic survey had demonstrated “quite a positive upward trend” over the last year, but added that investment was being “withheld” by some firms in Northern Ireland due to uncertainty.

Fergus McReynolds, the Director of EU and International Affairs at manufacturing body Make UK, said it was “clear” that “co-operation with the EU is being held back while we are at an impasse” over the protocol and “we really need to start talking and co-operating with each other in a way that is being hampered at the moment”.

Additional reporting – PA

Freya McClements

Freya McClements

Freya McClements is Northern Editor of The Irish Times