Cathal McCall (Queen’s University Belfast)
The backstop became the major bone of contention in the Draft Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (2018). It was contained in Draft Agreement’s Protocol on Ireland/Northern Ireland. The Protocol decreed that, in the event of the failure to agree a comprehensive EU/UK trade agreement after the transition period, or find other (technology-based) solutions for maintaining an open Irish border, the backstop would come into effect. It would keep the whole of the UK in a single customs territory with the EU. Additionally, Northern Ireland would remain in some parts of the EU Single Market to ensure the preservation of an open Irish border without inspection points.
The Draft Agreement was rejected three times by MPs in the British House of Commons. It is a point of conjecture whether the main reason for this repeated rejection was the backstop’s divergent regulatory regime for Northern Ireland from the rest of the UK, or the proposed UK-EU common customs territory that the UK could not exit unilaterally. However, opinion polls indicating a lukewarm British/English attitude to Northern Ireland’s place in the UK suggest that the latter inspired the repeated rejections in the House of Commons. What the Draft Agreement did do was help bring to a premature end the premiership of Theresa May.
The Revised Withdrawal Agreement, containing the Revised Protocol on Ireland/Northern Ireland, was negotiated by the new Prime Minister Boris Johnson’s government and released on 17 October 2019. It confirmed that the British government reflected British popular opinion by caring not a fig for the membership of Northern Ireland as a constituent part of the UK. Rather, the overriding priority was to attempt to disentangle Britain from the tentacles of EU law and governance. The desire for divergence between Britain and the EU trumped one for maintaining the status of Northern Ireland as an integral part of the UK.
The Revised Protocol shifted the focus of rebordering from the Irish border to Britain. It revealed that Northern Ireland would follow EU rules and regulations on customs and goods while Britain would not. Unlike the backstop this frontstop is assumed to be permanent. However, Northern Ireland MLAs would have the opportunity to vote to opt out of Protocol arrangements every 4 years.
Northern Ireland would remain a part of the UK customs territory – with Northern Ireland nominally included in future UK trade deals – yet, crucially, it would follow the EU’s Customs code. The EU’s VAT rules would apply to Northern Ireland and it would follow EU rules and regulations for trade and state aid. This arrangement could be interpreted as ‘the best of both worlds’ for Northern Ireland: non-tariff access to both EU and British markets. However, its practical outworking could leave Northern Ireland dangling precariously between the two.
The establishment of an ‘Irish Sea border’ would likely impact negatively on the free movement of goods within the UK internal market. With Northern Ireland being, in effect, a part of the European Union Customs Union declarations would be required on goods moving from Northern Ireland to Britain with disruptive consequences for Northern Ireland businesses operating on an West-East – Northern Ireland to Britain – basis. Goods moving East-West – from Britain to Northern Ireland – are likely to require customs declarations and animal products moving in that direction would be subject to inspection at Northern Ireland ports at Belfast and Warrenpoint.
There was a further sting in the tail of this Brexit borders saga with the publication of the United Kingdom Internal Market Bill in September 2020. Clauses 42-45 of the Bill threatened to override parts of the Revised Withdrawal Agreement and the Protocol on Ireland/Northern Ireland, and break international law into the bargain.
The Bill would invest the British Secretary of State for Northern Ireland with the power to ‘modify or disapply’ the Protocol’s requirement for export declarations relating to goods transported between Northern Ireland and Great Britain. It would also give the Secretary of State the power to interpret Article 10 of the Protocol on state aid. The Protocol decrees that EU state aid rules apply to Northern Ireland. Moreover, if companies based in Britain have a footprint in Northern Ireland they could also be liable to follow EU state aid rules.
EU state aid rules affecting businesses in Britain, rather than the ‘Irish Sea border’, are what rankled Boris Johnson and Dominic Cummings, the government’s special adviser and Rasputin-in-Chief. Cummings’ masterplan for prolonged Conservative Party electoral success involves state aid for hi-tech business ventures, especially in the north of England where the Labour Party dominated until the 2019 General Election. This exercise in British self-interest threatens a full stop for the quest to prevent rebordering on the island of Ireland.
Cathal McCall is Professor of European Politics and Borders at the School of History, Anthropology, Philosophy and Politics, Queen’s University Belfast
This analysis is part of a series of comments on ‘Northern Ireland in a Post-Brexit scenario’
Image credit: Flickr No 10 Downing Street, Boris Johnson visits Northamptonshire Police HQ