For Rishi Sunak, the moment of truth is approaching on whether he can strike a deal to settle the corrosive row over the post-Brexit settlement in Northern Ireland.
As talks intensify, the British prime minister faces many questions but one above all others: what role, if any, can he accept for judges at the European Court of Justice on UK territory.
European leaders, meeting in Brussels on Thursday, have been promised that the ECJ will remain the “ultimate and sole arbiter of EU law” relating to the controversial Northern Ireland protocol.
The precise role of the ECJ is viewed by many in London and Brussels as the biggest block to a deal to fix the longstanding dispute.
As Sunak considers whether he can sell a putative deal to “fix” Northern Ireland’s post-Brexit trading rules, some British officials privately accept the Luxembourg court will continue to play some role.
Downing Street refused to comment on the negotiations but one senior British official said: “Do you hear anybody talking about this in Ballymena? No. We’ve got to focus on the things people actually care about.”
A senior EU diplomat agreed: “This issue really doesn’t matter to ordinary people.”
Sunak’s problem is that the people who do care about the ECJ issue care about it very much indeed — and pose a political danger to him.
Tory Eurosceptic MPs want Sunak to press ahead with legislation that would scrap the Northern Ireland protocol — part of Boris Johnson’s 2019 Brexit deal — and the role of Luxembourg judges in the region.
Meanwhile, some in Northern Ireland’s pro-UK Democratic Unionist party insist on ending the ECJ’s role because it implies EU law still applies to UK territory. “That’s a no-no for us,” said Sammy Wilson, a senior DUP MP.
However, British officials note there is no explicit reference to expunging the ECJ from Northern Ireland in the party’s “seven tests” for judging reforms to the protocol, suggesting some room for compromise.
Downing Street said “intensive scoping talks” were continuing between London and Brussels on a possible deal to end the protocol row.
The pace of the negotiations is quickening. Chris Heaton-Harris, Northern Ireland secretary, held talks in Brussels with Maroš Šefčovič, European Commission vice-president, on Wednesday to discuss the issue.
The outline of a deal is taking shape, notably the creation of “red and green lanes” to sharply reduce the border checks on trade between Great Britain and Northern Ireland, which remains in the EU’s single market for goods.
A “trusted trader” scheme would see goods from Great Britain destined for the Northern Irish market travel through a green lane with minimal checks. Goods exported destined for sale in the EU — including the Irish Republic — would go through a red lane with checks.
Both sides caution that a deal is not finalised, and the issue is not on the formal agenda of Thursday’s summit in Brussels, but EU diplomats expect Sunak to decide within weeks whether to confront his party and push for one.
One EU diplomat said that retaining the ECJ as the ultimate arbiter of EU law was “a deep red line”, noting that any changes to the Luxembourg court’s role would have to be approved by the court itself.
Mujtaba Rahman, managing director for Europe at the Eurasia Group consultancy, said the question of the ECJ was the main block to a deal. “It’s a political problem for both sides.”
Johnson’s Brexit deal left Northern Ireland in an enviable, but constitutionally complicated, position as the only part of Europe with unfettered access to two large markets: the UK and the EU.
The court was always expected to have a role in enforcing the agreement since it required large amounts of EU law covering the trade of goods to apply to the region.
The court’s role was not initially contentious but that changed in 2021 when the European Commission launched a legal action against the UK for failing to meet its obligations under the protocol on “the movement of goods and pet travel”.
The commission said that under the terms agreed by Johnson in 2019, Article 12(4) of the protocol handed direct “supervisory and enforcement powers” to the European commission and the ECJ, allowing it to launch proceedings against the UK under the same article — 258 of the EU treaties — used for any EU member state that was in breach of them.
Westminster insiders said Lord David Frost, then Johnson’s Brexit minister, was particularly aggrieved to see the newly sovereign UK so quickly subject to the jurisdiction of EU’s top court.
EU officials have, in private, recognised that the current role for the ECJ in enforcing the protocol has become highly politicised and that some solution might need to be found to soften its role.
According to Catherine Barnard, EU law professor at Cambridge university, the EU has three options to solve the stand-off.
The EU could make a political declaration that the commission will not rush to start enforcement proceedings against the UK and will try other ways of resolving disputes first. This would not require the deal to be reopened.
A second approach would be to agree that Article 258 would not be used to tackle breaches of the protocol, but that national courts could still ask the ECJ to rule on matters of EU law.
The third, more radical approach, would be to agree to UK demands that the dispute resolution mechanism used in the rest of the EU-UK Withdrawal Agreement should apply to the Northern Ireland protocol as well.
Since Great Britain is not in the single market but Northern Ireland is, this is seen by many in Brussels as a non-starter. The second two options would require a rewrite of the protocol, which the EU has so far ruled out, Barnard added.
Sunak knows that leaving the ECJ with any role on UK territory will pit him against some rightwing Tory MPs, including Johnson, who are already restive on a number of other fronts.
The European Research Group of Tory Brexiters says that if any deal on the protocol does not satisfy the DUP, then it has, by definition, failed.
The DUP’s Wilson said: “The issue of EU law applying to our part of the United Kingdom is non-negotiable.” But the party has climbed down before, notably belatedly accepting the 1998 Good Friday Agreement that ended the three decades-long Troubles.
Sunak has tried to gain some political breathing space with Tory rightwingers by striking tough poses on illegal migration — including hinting he might consider leaving the separate European Court of Human Rights — and vowing to proceed with a bonfire of old EU rules.
Going for a deal with Brussels, however, will be one of the biggest gambles of his career.
Former Tory prime minister Sir John Major urged him to be bold.
“Not everybody is going to get what they wish,” Major told MPs this week. “Statesmen who do that will succeed. Politicians who keep shouting slogans to their extreme supporters will not.”