Mr. Tony Connelly:

I agree with what Mr. Montgomery said about the ECJ. This is an extremely difficult issue for the European Union, especially given the strong suspicion among member states that it is an ideological issue brought in by David Frost with the command paper in July 2021, as a kind of a stop to Brexiteer ideologues in the ERG, and that it was not something that had ever been raised by Northern Ireland businesses, stakeholders or even parties, in the talks up to that point. At the same time, anybody I get to speak to who is close to these negotiations say that if they get through all the other issues and get agreement on customs and sanitary and phytosanitary, SPS, checks and if the ECJ thing is the last hurdle before agreements, they will find some form of words or a mechanism.

There has been speculation about having a layer of arbitration somewhere in between in order that if an issue of EU law had to be clarified, it would go to the ECJ and ECJ's opinion would then go to the arbitration layer in between, to say this is the ECJ's orthodoxy on this and that would essentially be binding. However, that is just speculation. I do not know where this will end up. Certainly the ERG will not get its demands that the ECJ be stripped out of the protocol altogether, but it may find some form of words.

I know when I looked at Northern Ireland getting some representation before, certainly to have some kind of observer status at the European Parliament would be difficult, because the fear is that the Catalans might want something similar. One always runs into these problems. There is a joint consultative working group, which is part of the protocol. The UK has been pushing for that layer to be much more active, much sooner, in order that, essentially if the EU is bringing out new legislation or updating existing rules, the machinery will be alerted in quicker time, in order that the UK and Northern Ireland stakeholders can observe and look at what is promised.

According to the protocol, if there is brand new legislation coming in that does not exist already and which will have an effect on the movement of goods into Northern Ireland, then the UK can raise a flag and object but it would need to have a very good reason to do that. One would have to ask what the existential worry would be for the UK about a particular Bill. I know there are strong issues around medicines, state aid and energy with the cost-of-living crisis at the moment. In the final package, we will see something on what is called governance, which will deal with this question of having some kind of stronger role for Northern Ireland institutions. We just have not seen the detail of that just yet.