European Union proposals to fix the Northern Ireland Protocol have divided opinion among Conservative MPs, as the bloc prepares to set out plans that will fall short of the UK’s demands on Wednesday.
The European Commission is set this evening to publish a set of "far reaching" plans to dramatically cut the number of border checks on British goods, animals and plants sent to Northern Ireland.
The UK has called for an entirely new protocol to prevent the checks, which are required under the 2019 treaty, from causing continued disruption to trade with the British mainland.
However, Brussels will refuse to offer a wholesale renegotiation of the protocol and rule out Lord Frost’s call to replace the European Court of Justice (ECJ) with international arbitration panels modelled on the Brexit trade deal.
An EU official confirmed there would be no mention of the European Court of Justice (ECJ) in today’s paper, which is expected to kick-start intense negotiations on Thursday in London.
Instead, the EU will present plans which have been likened to the "maximum facilitation" or "max-fac" strategy previously called for by Brexiteers in 2019, which envisaged technological solutions to minimise the need for physical checks at the Irish border.
In return, it will ask for real-time access to UK trade databases in order to police which products cross into the Republic of Ireland, the EU’s external border.
Reacting to the proposals this morning, several hardline Brexiteers warned that they did not regard them "anywhere near sufficient" and urged Lord Frost to remain firm and carry out his threat to trigger Article 16 of the protocol if Brussels did not cave.
The clause would unilaterally suspend parts of the treaty and risk a trade war with the EU but Brexiteers insisted the issue was a matter of sovereignty.
But others greeted the proposals with cautious optimism, including those behind the max-fac proposals published two years ago.
Also known as the "Malthouse Compromise" named after Kit Malthouse, now the policing minister, the plans were backed by a mixture of hardline Brexiteers and Tory moderates.
They included Robert Buckland, the former justice secretary, who on Wednesday told The Telegraph: "It’s great the EU are moving and are prepared to compromise."
While Mr Buckland said he would reserve judgment until the EU’s proposals had been published, he added that on the face of it he believed that the bloc may have moved far enough for there to be a "sensible landing place".
His comments were echoed by Steve Baker, the former chairman of the European Research Group, who said: "My spirit is lifted by the possibility that we may at last have a breakthrough that may allow us to respect the Good Friday Agreement east-west as well as north-south and allows Northern Ireland to remain part of the UK while outside the EU."
However, in a sign of backbench splits, David Jones, the deputy chairman of the European Research Group of Conservative MPs, said: "Lord Frost has to stand firm because the whole point is that we will not complete our departure from the European Union until every part of the UK is no longer subject to the jurisdiction of the ECJ.
"Until such time as we have got rid of it we will not be an independent country and David Frost has got to stand firm."
"The EU want to be judge, jury and executioner over the Northern Ireland Protocol through the European Court of Justice," said Andrew Bridgen, the Tory MP for North West Leicestershire.
"We promised we’d take back control of our money, laws and borders and the last time I looked Northern Ireland was part of the United Kingdom," he said before urging the Brexit minister to give Brussels his "usual Frosty response".
Asked about the proposals on Wednesday morning, Tory chairman Oliver Dowden said the offer to cut checks from Brussels was a "welcome step". He told Sky News the role of the ECJ was "a major issue for us" but stopped short of calling it a dealbreaker.
Nathalie Loiseau, a MEP and Emmanuel Macron’s former Europe Minister, told the BBC that normal people in Northern Ireland were not worried about the European Court of Justice.
She said: "I am wondering who is the problem solver and who is the troublemaker."
Ms Loiseau said stripping EU judges of their powers to implement the bloc’s rules in Northern Ireland would mean the province is stripped of its access to the EU Single Market.
"It means that you tear up the Northern Ireland Protocol… It is part of the Withdrawal Agreement and we cannot agree to that," she said.
"There is no discussion about the European Court of Justice among EU capitals nor any willingness to entertain it," an EU diplomat told the Telegraph.
The protocol created a customs border between Britain and Northern Ireland, which continues to follow some EU rules, to prevent the need for a hard Irish border.
But, in a significant concession, the proposals are expected to remove the need for up to 50 per cent of checks on goods and about 80 per cent of checks for animal and plant health reasons.
Britain will have to give the European Commission access to sensitive UK databases to monitor trade flows to ensure British goods meant for Northern Ireland only do not end up in EU member Ireland.
"This is a deal for Northern Ireland not for London," an EU official said, "it is aimed at Northern Irish businesses and people and their real concerns".
Frans Timmermans, executive vice-president of the European Commission, said: "We will put a number of those solutions on the table in the hope that they will be appreciated by the people of Northern Ireland […] let’s try and be rational about the things we still need to solve on Ireland."