The Northern Ireland Protocol has led to a “democratic deficit” where politicians in the region have no say over rules which govern trade, a Westminster committee has been told.
A barrister told the European Scrutiny Committee that the current oversight role of the European Court of Justice (ECJ) on protocol-related issues raised concerns around identity.
The Committee is examining government proposals to amend the post-Brexit trading arrangement, including dual regulation, green and red lanes at customs points, and the role of the ECJ in any future settlement.
The UK wants to tear up the existing governance arrangements, removing the ECJ as the final arbiter in protocol-related trade disputes and replacing it with an independent international arbitration mechanism.
The Times reported on Wednesday that Brussels has made concessions on the jurisdiction of the ECJ, although Downing Street has stressed that “significant gaps” between the UK and EU over the post-Brexit arrangements.
Barrister Thomas Sharpe KC, an expert in EU law, was questioned about the oversight role of the ECJ.
Mr Sharpe said: “It is really a question of identity. You just don’t want, anymore than we do in GB, to have the European court telling us what the law ought to be.”
Mr Robinson added “The reason the ECJ has a role at all is because we are bound by laws in which we have no say.”
Mr Sharpe said: “It is even worse because the provision of the protocol not only allows the (European) Commission to look at existing laws and laws to be amended, but new laws may come in and there doesn’t seem to be much ability to question their application.
“So you are lumbered.”
Conservative MP David Jones said: “We have frequently criticised the democratic deficiency of the protocol.
“Do you think it is ever possible to make the protocol itself work?”
Mr Sharpe responded: “Will it function to the satisfaction of the business community in Northern Ireland? I am not so pessimistic about that, there is a sort of commercial logic to making things work.”
Mr Jones said: “I am more interested in the democratic deficit?”
Mr Sharpe said: “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.”
The barrister said the same criticism applied to the role of the ECJ in the protocol.
He said: “We have 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.
“What we have done is do a quarterly economic survey. What we have seen is quite a positive upward trend in the course of the last year.
“Year on year we see 36% of businesses saying they are trading well, up from 23% last year.
“Around 21% are saying it was difficult but we have adapted. About 25% say it doesn’t impact upon them at all.
“Around 15% are saying the protocol just doesn’t work.”