Lawyers advising Eurosceptics in the Conservative party have submitted fresh proposals to Rishi Sunak to end the rule of EU law in Northern Ireland, one of the major sticking points in the UK-EU negotiations over the protocol, it has emerged.
The proposals were sent to Downing Street, senior ministers and the European Commission as the Northern Ireland secretary, Chris Heaton-Harris, travels to Brussels for more talks with the commission vice-president Maroš Šefčovič.
The three-page letter suggests a legal device that would mean any businesses exporting to the EU that breached European regulations would be prosecuted in British courts rather than the European court of justice.
To work, the government would pass special legislation creating a new export certification and tariff collection system for exporters to the EU. By signing up to the certification, exporters in Northern Ireland would agree to pay tariffs if applicable and follow all EU laws relevant to their products.
The Democratic Unionist party told the BBC last night: “Sir Jeffrey [Donaldson, the DUP leader] did not approve this document but was advised it was being sent.”
It is understood the document, seen by the Guardian, was written by some senior figures in Lawyers for Britain – a group of lawyers and academics who backed the leave campaign and are part of the European Research Group of Eurosceptic Tory MPs’ “star chamber” of legal advisers – along with Jamie Bryson, the Northern Ireland policy director at the Centre for the Union thinktank.
Christopher Howarth, an adviser to the ERG, told BBC Northern Ireland’s Nolan Live: “When we saw this proposal we thought it was incredibly interesting because it raises a way of solving the problem of the Northern Ireland protocol in a way we think could solve the needs of all the major parties to it – the EU and Ireland’s needs, the needs to remove EU law and [create] democratic consent in Northern Ireland – and do it in a way that leaves an invisible border, and non-compliant goods don’t get into the EU’s market.”
Both the DUP and the ERG stressed they were not authors of the document but Howarth told Nolan Live he had discussed it with Donaldson. “I have discussed this with him and I think he would share the view that is is a very interesting proposal that deserves to be discussed because it is a potential solution,” Howarth said.
Under the proposals, British prosecutors could take companies in Great Britain to court if they were sending components to Northern Ireland that failed to comply with EU law but ended up in finished products exported from the region to the single market.
“EU law would not itself directly apply within the territory of Northern Ireland, and would only arise at or beyond entry to the Republic [of Ireland], at which point EU law could be enforced by the EU/Irish government,” says the letter.
The document suggests the EU and Ireland would apply a similar system in reverse with their own export certification to comply with UK law.
Under the system, companies in Great Britain sending products, including components, to Northern Ireland that would end up being exported to the EU, would have to go through “red lane” checks in transit on the ferry or on arrival at the port in Belfast or Larne.